Constitution and Constitutionalism: The distinctive features of the Constitution

Constitution consists of arrangements that determine the political, legal and social structures by which the society is to be governed. Constitutional provisions are considered to be fundamental law. Constitutional law is supreme law in our country. If the constitutional law itself is inadequate then the rule of law and democracy of the country will be affected. The modern structure of India is divided into three organs i.e. Legislation, Executive & Judiciary.

 There should be Independence of Judiciary in the democratic country. Judiciary should not be answerable to the Parliament as there is a separation of powers. In India, if any law comes in the path to maintain constitutionalism, it will be declared invalid and unconstitutional. The intention behind this division of the bodies is to separate their powers, here separation of powers means working independently by maintaining their autonomy. Together, this is termed as the concept of constitutionalism.

In India, there is a parliamentary form of governance, the efforts have been made to make the powers separate in the constitution but a lot of overlapping power has been granted to each of the organs. All three organs maintain a check and balance system to work with co-ordination and co-operation. The Supreme Court and the High Courts have the power of judicial review which empowers them to declare the law invalid and unconstitutional which is passed by the Parliament.

Constitutionalism

 Constitutionalism is the idea of limiting the powers of the government and its authority depends upon its observations of these limitations. A constitution is a written document in which a legal and moral framework is done for setting out the powers and limitations of the government. In literal terms ‘Constitutionalism’ means ‘limiting the government or limitation on the government’.

Constitutionalism recognizes the need of the government but also takes care that the power should be limited. If any government goes beyond its limit and jurisdiction it loses its authority and legitimacy. A scholar David Fellman describes that the touch of constitutionalism is the concept of limited government under the higher law.

Thus, to preserve the basic freedoms of the individual and to maintain the dignity and personality, the constitution must have constitutionalism. It must have the inbuilt restrictions on the powers conferred by the constitution to the organs of the government. Constitutionalism is a modern concept which stands only for supremacy of law but not for the individuals.

The presence of Constitutionalism can be analyzed with the help of various provisions of the constitution that are:

• Preamble
• Judicial Review
• Rule of Law
• Separation of Power
• Check and Balance System etc.

There is no list which shows the presence of constitutionalism but every feature which limits the government and establish a position of sovereignty under fundamental principles of constitutional jurisprudence may be the notable points for constitutionalism.

According to Justice Subba Rao, Preamble is the soul of the constitution without which a body in the form of states cannot survive. In 1973 in Kesavananda Bharati case, ¹ It was held that Parliament cannot amend the basic structure of the constitution by the power granted under Article 368 of the constitution and “Preamble is a part of Constitution”. The separation of power doctrine was included in the basic structure.

In A.K. Gopalan case, ² It was held that the “Procedure established by Law” is not the same as the “Due Process of Law”, the Legislature has the power to determine the law. Thus the reasonableness cannot be questioned on substantive grounds by the Supreme Court. It was also held that it is difficult to restrict the legislative power with judicial interference except the provisions are expressed in the constitution. It shows that in the absence of power of judicial review in the hands of Judiciary, judiciary is merely a puppet of legislators.

In India there is a “Procedure established by Law” doctrine prevails which is adopted from the Constitution of Japan. It is enshrined in Article 21 of the constitution. It shows the sovereignty of Parliament because the law is made by Legislature in India. It restricts the Judicial Supremacy and right to do Literal Interpretation not statutory construction of laws.

 Features of the Constitution

There are various features of the constitution. Some of them are:

• Judicial Review: The Supreme Court and High Courts have the power of judicial review under Article 137. If any law or action is violative then it can be declared as unconstitutional and invalid by the court.
• Parliamentary form of Government: The Constitution of India provides a parliamentary form of government at the Centre as well as in every state and the President of India is the head with nominal powers.
• Written & Detailed Constitution: It is the lengthiest written constitution in the world. It consists of 395 Articles 22 Parts and 8 Schedules originally but currently there are 448 Articles 25 Parts and 12 Schedule.
• Fundamental Rights & Fundamental Duties: Part III and Part IV-A of the Constitution deals with the fundamental rights and fundamental duties. There are 6 fundamental rights like the right to freedom, right against exploitation etc. In the current scenario, Right to Property is not a Fundamental Right. In the case of Fundamental Duties, initially there were 10 but finally after the 86^th Amendment, 2002 there were 11 Fundamental duties.
• Directive Principles of State Policy: Part IV of the Constitution deals with the provisions of DPSP. The DPSP are the instructions to the state for securing socio-economic developmental objectives through policies.
• Preamble of the Constitution: The Preamble is the key to the constitution. It states that the nature f the Indian states and its objective is to secure the people of the country.
• Republic and Secular: Republic means that there should be no king or monarch rule but the elected representative will be the head of the State. Secular means the nation has no religion so any religion can be practised in India.
• Adult Suffrage: At the attainment of age of 18 years everyone has the Right to vote. In other words, a person after attaining the age of 18 years get the Right to Vote in the elections.
• Single Citizenship: Single citizenship means that in India a citizen has to get only single citizenship. Single citizenship for the whole part of the India i.e. there is no requirement of the State Citizenship as in the dual citizenship concept.
• Independent Judiciary: There is independence for the Judiciary i.e. there is no interference by other bodies. Judiciary is kept independent to protect the rights of the individuals and to provide equal justice without fear and favour. It is necessary that the Judiciary must be independent.
• Emergency Provisions: Constitution provides emergency provisions under Article 352, 356 & 360 as National, State and Financial Emergency. During the time of emergency, the power is centralized i.e. all the powers come under the Government of India and as per the need the Governor’s rule or the President’s rule will be applied.
• Basic Structure Doctrine: This provides that the basic structure of the Constitution cannot be amended or altered even by the Parliament under Article 368 of the constitution. Parliament can amend the Constitution by the powers conferred under Article 368 but cannot destroy or diminish the basic structure of the Constitution.

Conclusion:

Constitutionalism is that characterwhich controls the misuse of powers by an authority of the state. Judiciary plays an important role to maintain the balance between the organs of the government.The organs of the government can exercise their powers within their boundaries results in that they were unable to entertain arbitrary powers. The main aim is to protect the individuals of the country. Constitutionalism is present in India but in the form of natural justice principle to govern the administrative functions.

If there will be Rule of Law and Judicial review in the same system then the conflict between the Parliament and the Judiciary (Guardian of the Constitution) arises. Every provision has its importance but if it is implicitly present in a constitution but its reflection is found in some clauses of the laws, then it will be sufficient to promote the spirit of constitutionalism.

“The views of the authors are personal“

References:

1. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
2. A.K. Gopalan v. State of Madras, AIR 1950 SC 27