National University of Study and Research in Law, Ranchi
Ranchi - Jharkhand
CONSTITUTIONALISM
SUBMITTED BY SUBMITTED TO
Dr. Avinash kumar
Assistant Professor
Section – A (Comparative constitutional law)
Semester - VIII
INTRODUCTION
Constitutionalism is belief—often linked to the political ideas of John Locke and American
republic's founders—that ability of a government to enforce the limitations placed on its powers
by law is a prerequisite for both legitimacy and authority. Philosophers and legal scholars
interested in the philosophical and legal foundations of state will find this idea to present a
variety of challenging questions. Law is an outcome of government, therefore how can it be used
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to restrain it legally? Does this imply that "self-limiting" is possible for an administration? Is it
even feasible to do this?
If otherwise, will there be a a way to circumvent this inference? Maybe constitutional limitations
must become "firmly established," or difficult to elimination or alteration by those whose powers
are restricted, if genuine limitation is to be possible? Maybe they have to be ingrained in written
regulations as well as deeply ingrained 1. If so, how should one approach these rules? Regarding
their public fundamental meaning, writers' motives, or the ideals and tenets they express—values
that may never fully develop—what do they mean?
Ultimately, one's understanding of nature, sense of self, and authority of constitutions will
determine how they ultimately respond to these problems. Does the exercise of public power
require a solid foundation established by a constitution that is set in some way by elements such
as authorial intents or fundamental societal meaning? Alternatively, may it be a living thing that
changes and evolves along with shifting political ideals and ethics?
MEANING OF CONSTITUTIONALISM
Constitutionalism is belief that that a nation's authority is derived from its constitution or book of
laws. While restricted authority is commonly associated with constitutionalism, that is merely
one historical rendition of constitutionalism and is by far not the most common one.
Constitutionalism more broadly refers to actions taken to avert arbitrary governance. ability of
leaders to rule intentionally, or with total autonomy; and to advance their own objectives over the
ones of the governed is the most general definition of inflexibility. Constitutionalism creates
procedures that specify who can govern, how, and why in an effort to prevent these risks.
Different constitutional rituals, however, disagree on the specific definition of an arbitrary act
and the appropriate safeguards preventing its occurrence. By creating a condition for electoral
equality characterised by an equitable distribution of authority among each of the appropriate
categories as well as individuals inside an organisation, ensuring that no individual is able to
govern lacking involving goals of those in power, traditional republican tradition—as referred to
as constitutional politics through its neorepublican interpreters—avoids inconsistency, which it
determines as authority of t ruled through the actions of rulers. A more liberal, modern
1 Bellamy, Richard. (2010). Constitutionalism. INTERNATIONAL ENCYCLOPEDIA OF POLITICAL SCIENCE,
B. Badie, D. Berg-Schlosser and L. Morlino, eds., IPSA/Sage, Forthcoming.
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perspective sees inconsistency as a violation of the rights of individuals and seeks to protect
those rights by dividing authorities and creating a constitution which judiciary can execute. 2
These two customs coexist in tandem in numerous constitutions and are prevalent in the majority
of democracies. first tradition is concerned with the structure and operation of democracy,
covering election systems, presidential vs parliamentary rule, unitary versus federal structures,
and unicameralism against bicameralism. Even though the majority of constitutional instruments
describe such process procedures and their relationships, second practice began to overshadow
their constitutional significance, especially in the legal community. This viewpoint stresses how
a constitutional court must define and uphold the various governmental branches' jurisdictions as
well as the rights enshrined in constitution.
HISTORY OF CONSTITUTIONALISM
The history of constitutionalism in India is a complex and multifaceted narrative that spans
several centuries. It is deeply intertwined with the country's struggle for independence from
British colonial rule and the subsequent development of its own constitutional framework. Here
is a brief overview of key developments in India's constitutional history:
1. Ancient and Medieval Periods: India has a rich tradition of governance and legal systems
dating back to ancient times. Various empires and kingdoms, such as the Mauryas, Guptas, and
Mughals, had their own systems of governance and legal principles3.
2. British Colonial Rule: The formal introduction of constitutionalism in India began under
British colonial rule. The Government of India Act, 1858, marked the beginning of the British
Crown's direct rule over India following the Indian Rebellion of 1857. Subsequent acts, such as
the Indian Councils Act, 1861, and the Indian Councils Act, 1909, introduced limited forms of
representation and legislative councils.
3. Montagu-Chelmsford Reforms (1919): The Montagu-Chelmsford Reforms introduced a
limited form of self-government, known as diarchy, at the provincial level. It also expanded the
legislative councils and increased Indian representation in government.
2 Langa P, ‘Transformative constitutionalism’, Stellenbosch Law Review, 17, 3, 2006, pp. 351–360 3
Legalbrief Today, ‘The future of “transformative constitutionalism” in South Africa’,12 August 2008,
[Link]
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4. Government of India Act, 1935: The Government of India Act, 1935, was a significant
milestone in India's constitutional history. It introduced a federal system with separate powers for
the central and provincial governments. It also provided for the establishment of a Federal Court
and expanded the role of Indians in government.
5. Indian Independence Movement: The struggle for independence led by figures like
Mahatma Gandhi, Jawaharlal Nehru, and others played a crucial role in shaping India's
constitutional future. The demand for a constituent assembly to draft a new constitution for India
gained momentum.3
6. Constituent Assembly and Constitution of India: The Constituent Assembly of India,
elected in 1946, was tasked with drafting the country's constitution. After extensive deliberations
and debates, the Constitution of India was adopted on January 26, 1950, marking the country's
transition to a republic.
7. Key Features of the Indian Constitution: The Indian Constitution is notable for several
key features, including its length and detail, its federal structure with a strong center, a
parliamentary form of government, fundamental rights, and directive principles of state policy.
8. Amendments and Evolution: Over the years, the Indian Constitution has been amended
several times to reflect changing socio-political realities. Notable amendments include those
related to land reforms, abolition of privy purses, and the introduction of reservations for
disadvantaged groups.
9. Judicial Review: The Indian Constitution provides for a robust system of judicial review,
empowering the courts to interpret and enforce the constitution. The Supreme Court of India has
played a significant role in interpreting the constitution and safeguarding fundamental rights.
10. Legacy and Impact: India's constitutional legacy has had a profound impact not only on
the country but also on other post-colonial nations. Its emphasis on democracy, secularism, and
social justice continues to shape the country's governance and legal framework.
3 Prempeh HK, ‘Africa’s “constitutional revival”: False start or new dawn’, International Journal of Constitutional
Law, 5, 3, 2007, pp. 469–506.
4
Overall, the history of constitutionalism in India reflects the country's complex journey from
colonial rule to independence and its ongoing efforts to uphold democratic principles and
promote inclusive development.
Features of Constitutionalism
However, legal restrictions included in constitution do not act as limits on their own. Enemies
won't turn into kind leaders just because the constitution says so 4. There must be an assortment of
societal measures to prevent breaches of both law and letter of constitution.
Constitutionalism, according to Louis Henkin, consists of the following components:
• Democratic Governance
• power Division
• Individual's autonomy and democracy
• examination of constitution;
• an impartial court;
• constrained government guided by a charter of rights;
• police oversight;
TWO TRADITIONS OF CONSTITUTIONALISM
Political constitutionalism: from mixed government to representative democracy idea
of mixed governance dates back to classical thought, which categorised political systems
according to how many people, a few, or one person reigned. three fundamental forms of
society, including the rule of law, ruling class, and kings, were thought have the potential to
degrade into oligarchy, anarchy, and tyranny, in that order. This dishonesty resulted from
overabundance of authority in possession of one individual or organisation, which encouraged
misuse of power by permitting capricious control. The idea was to blend or combine different
kinds in order to guarantee proportion and balance. Therefore, each kind of government's virtues
4 Cornell, S. (2011). The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism
and the Original Debate over Originalism. Yale JL & Human., 23, 295.
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—a powerful executive, participation from the "better" segments of humanity, and public
legitimacy—could conceivably be achieved despite the accompanying vices.5
This traditional mixed-government idea is based on three principles. Initially, definition of
random authority was given as a capacity of one person or group to govern over another without
considering their interests. Being subjected to such capricious dominance amounted to being
reduced to status of a slave obligated to carry out the wishes of their master. All free citizens
must live in a context of political equality in order to overcome inconsistency as it is now
understood.6 It won't be possible for any individual or group to act or think like the master of
others until then. Secondly, way to reduce this kind of dominance was to make sure that no one
could govern with no backing of a minimum of one other person or organisation.
The concept underwent three major revisions in the 17th and 18th century. First was evolution
of idea of mixed governance into a division of powers, which is discussed below. various
branches of government are not clearly distinguished under the mixed government idea. various
social classes divided up executive, legislative, and particularly judicial responsibilities that
were performed by all government agencies. In fact, via referendums and their role as jurors,
public element directly performed some legislative and judicial responsibilities.
Second shift concerned kind of "balance" that mixed governance was meant to bring about.
traditional perspective used a literal interpretation of political "body." health of political system
was supposed to depend good constitution that established a "natural" equilibrium among many
parts as well as "humours" of parliamentary form, much just like one's physical wellness was
thought to depend on a solid physiological constitution, harmonious food, and a well-balanced
manner of life. As we saw, in keeping with this biological vision, goal was to delay system's
ultimate deterioration and degeneration. First two developments were a basis for third. This was
theory that battle between administration and a "loyal" opposition now comprised political
equilibrium. Parties became vehicles of this new kind of equilibrium as they developed from
basic divisions and systems of favour among contenders for power to electoral machines
5 Lee, S. Z. (2018). Our Administered Constitution: Administrative Constitutionalism from the Founding to
the Present. U. Pa. L. Rev., 167, 1699.
6 Toktogazieva, S. (2019). Constitution without Constitutionalism? Challenges to constitutionalism in the Kyrgyz
Republic. Const. Rev., 5, 275.
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characterised as much by societal makeup and philosophy as by individual objectives and
passions of political class.7
Legal constitutionalism: from the separation of powers to rights and judicial review
This division's fundamental justification is that people or organisations shouldn't act as "judges in
their own cause." separation of powers across three branches is intended to guarantee that people
who create laws are not the same as the people who are in charge of interpreting, applying, and
upholding them. Because they are all subject to the same laws, legislators are motivated to avoid
passing legislation that serves their own interests and to write it in a manner which will apply to
everyone equally. These laws then serve as a guide for the judgements made by executive and
judicial branches, who have an additional incentive to operate impartially due to their shared
legal obligations , time-saving advantages associated with the division of labour are also brought
about by separating functions.
DIFFERENCE BETWEEN CONSTITUTION AND
CONSTITUTIONALISM
Primary distinction between constitutionalism and constitutionalism is that latter is a system of
governance that upholds the rule of law and restricts authority of government, whereas the
former is typically a written document drafted by governing bodies (often with civil society
participation). Although the majority of contemporary constitutions were drafted long ago, laws
and customs had already been evolving and shifting for centuries and still do. Constitution, like
all laws, is a living document that must change to reflect the evolving needs of contemporary
society and the wider globe. Failure to modify the constitution while maintaining its essential
ideals might result in an antiquated and ineffective form of government.. Other differences
between the two concepts include:
7 Fatton Jr, R. (2000). Constitution without constitutionalism: Haiti and the Vagaries of democratization. New West
Indian Guide/Nieuwe West-Indische Gids, 74(1-2), 5-32.
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1Although constitutionalism is founded on the ideas expressed in constitution and other
important legal texts, it additionally possesses a unique set of guiding principles.
Constitutionalism is a notion that opposes autocratic and tyrannical authority and is predicated
on premise that political power ought to be restrained to avoid abuses and excesses;
2. While tenets of constitutionalism are typically unwritten, constitution is frequently a written
document. spread of democratic ideas causes both constitutionalism and constitution to change,
but not necessarily at a comparable rate. Even when national constitution is no longer up to date,
it can still be a constitutional form of government that upholds citizens' rights and advances
democratic principles. However, even with a constitution in place, an ineffective democratic
government might not have been able to exercise power in accordance with it8.
USAGE OF CONSTITUTIONALISM
• Descriptive use
Law professor Bernard Schwartz's effort to tracing history of U.S. Bill of Rights is one instance
of descriptive usage of constitutionalism. tale, albeit far from being a "straight-line,"
demonstrates historical effort to acknowledge and codify rights and principles outlined in a
constitution
• Prescriptive use
A recommended methodology deals with the ideal form of a constitution, such opposed to what
they are. Constitutionalism is " idea that state is entitled to and ought to be constitutionally
restricted to exercise its authority, while its legitimacy depends on its respecting these
limitations," according to Canadian philosopher Wil Waluchow.
8 Zhang, Q. (2010). A constitution without constitutionalism? The paths of constitutional development in
China. International Journal of Constitutional Law, 8(4), 950-976.
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CONSTITUTIONALISM AND THE RULE OF LAW
Concepts of constitutionalism and Rule of Law concern how jurisdiction of state and its
representatives should be constrained. Sometimes people equate two concepts. However,
constitutionalism as it is commonly understood usually refers to a variety of constitutional
mechanisms and practices, some of which are part of what makes a liberal democratic system of
government possible, such as separation of powers between legislature, executive, and judiciary,
autonomy of judiciary, due process or fair hearings for those accused of crimes, and respect for
individual rights. Conversely, the Rule of Law embodies a set of norms that characterise the
attributes that distinguish a legal system as such.
Supremacy of law, or idea that everyone is subject to same laws, especially legislators and
government, is what is meant by term "rule of law.". At very least, true constitutionalism
provides a fundamental guarantee of form and the substance of laws. rule of law, on the other
hand, protects constitutionalism. Only once rule of law is established can constitution emerge
dominant.
CONSTITUTIONALISM AND DEMOCRACY
Governments with an authoritarian mindset are inherently unconstitutional. These regimes
perceive no need for representative governance or separation of powers because they believe
they are above law9. However, fundamental tenet of constitutionalism is idea of people's
sovereignty, which a representative government ought to exercise—albeit sparingly. sole system
of representative and collaborative administration that continues to exist now is liberal
democracy. Thus, here is one fundamental as well as significant connection within
constitutionalism as well as democracy. Elections and political parties do not automatically
9 Feng, Y. Y. L. (2008). From Reform Constitution to Constitutionalism Constitution——The Review and Reflection on
the Development of Constitution from the Reform and Opening for 30 years [J]. Journal of the Postgraduate of
Zhongnan University of Economics and Law, 2.
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translate into democratic administrations, In same way that statutes alone never establish legal
framework of a country.
Authentic democratic nations included regarding individual autonomy, not that of their leaders
CASE LAWS WHERE PRINCIPLE OF ‘CONSTITUTIONALISM’ IS LEGALLY
RECOGNIZED BY SUPREME COURT OF INDIA
Supreme Court's position in I.R. Coelho v. State of Tamil Nadu1011 is that constitutionalism is
now a legal concept that needs oversight in order to prevent government from abusing its
authority and undermining democratic values on which it is founded. Defence of basic rights is
one of these democratic tenets. constitutionalism concept necessitates a distribution of powers,
i.e., several separate centres of decision-making, and proposes a a form of division of powers
that uses mechanisms for balance. main element of common law constitutionalism is
safeguarding of basic constitutional rights via legal system.
" constitutionalism or constitutional framework of Administration detests absolute rule - it relies
on Rule of Law whereby personal fulfilment is replaced by realism provided by provisions of
Constitution itself," court stated in Rameshwar Prasad and Ors. Vs. Union of India (UOI) and
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Anr. Aspirations and limitations are central to constitutionalism. As stated by Chief Justice
Chandrachud in the Minerva Mills Ltd. case, "You cannot destroy the identity of the Constitution
because it is a precious heritage."
CONCLUSION
According to Rothberg, it is accurate that our constitution strictly limits certain of government's
powers, at least in United States. However, according to what we have seen over past century, a
constitution needs to be understood by men; it cannot interpret or enforce itself. Furthermore, if
the government's own Supreme Court is granted the last say in how a constitution should be
interpreted, Court will inevitably continue to give its approval to ever-greater powers for the
government itself. Moreover, American government's much-heralded boundaries between
authorities and mechanisms for balance are weak in reality because, at end of the day, Each of
categories remain a member of identical administration who is run by same group of leaders.
legalisation of governance is an art danger to democracy and could contribute to its eventual
10 AIR 2007 SC 861.
11 SCC 1
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downfall if immediate action is not done to stop it. One unfortunate aspect of Indian governance
is the prevalence of both electoral and managerial nepotism. it is urgently necessary to eradicate
this disease from the political system of Indian democracy. People's aspirations at the local level
are growing exponentially, and if they are realised, the resulting growing resentment poses a
serious threat to democratic system's ability to operate.
REFERENCE
• Cornell, S. (2011). The People's Constitution vs. The Lawyer's Constitution: Popular
Constitutionalism and the Original Debate over Originalism. Yale JL & Human., 23, 295.
• Lee, S. Z. (2018). Our Administered Constitution: Administrative Constitutionalism
from the Founding to the Present. U. Pa. L. Rev., 167, 1699.
• Maduro, M. P. (2005). The importance of being called a constitution: Constitutional
authority and the authority of constitutionalism. Int'l J. Const. L., 3, 332
• Fatton Jr, R. (2000). Constitution without constitutionalism: Haiti and the Vagaries of
democratization. New West Indian Guide/Nieuwe West-Indische Gids, 74(1-2), 5-32.
• Zhang, Q. (2010). A constitution without constitutionalism? The paths of constitutional
development in China. International Journal of Constitutional Law, 8(4), 950-976.
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