UPSC Law Optional 2020 & 2021 | Notes for Constitution & Constitutionalism



A.CONSTITUTION V. CONSTITUTIONALISM : Constitution is JUST a document - which has a set of rules or norms creating, structuring and defining the limits of, government power or authority.

• Even the dictatorial govt has - Constitution but NOT constitutionalism. • Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals R.C. Poudyal And Anr. Etc. Etc vs Union Of India- 1993 AIR 1804. B.FUNCTIONS OF THE CONSTITUTION :

The Constitution is a political structure, whether it is written or not and followed or not. They have several functions. a) Expression of Ideology: it reflects the ideology and philosophy of a nation state.

b) Expression of Basic Law: Constitutions present basic laws which could be modified or replaced through a process called extra ordinary procedure of amendment. There is a special law also which usually focus upon the rights of the citizens, for instance, rights concerning language, speech, religion, assembly, the press, property and so on.

c) Organizational frame work: It provides organizational framework for the governments. It defines the functions legislature, executive and judiciary, their inter-relationship, restrictions on their authority etc.

d) Levels of Government: Constitution generally explains the levels of different organs of the Government. Whether it is federal, confederal or unitary will be described by the Constitution. They delineate the power levels of national and provincial governments.

e) Amendment provision: As it would not be possible to foretell all possibilities in future with great degree of accuracy, there must be sufficient provisions for amendment of the Constitution. It should contain a set of directions for its own modifications. The system might collapse if it lacks in scope for modification. Inherent capacity to change according to changing times and needs help any system to survive and improve.

Soviet Constitution was mostly an expression of ideology and was less an expression of organizational set up. The American Constitution is more an expression of governmental organization and a guideline for the power relationship of the regime than an expression of the philosophy of the regime.

C. CONCEPT OF CONSTITUTIONALISM ? UPSC 2014

Constitutionalism means LIMITED GOVT ; it means that powers of executive & legislature are limited & not - uncontrolled or arbitrary.

IS THIS CONCEPT APPLICABLE IN INDIA ? • Constitutionalism is the primary edifice on which the Indian democracy stands. • Modern constitutionalism, to which Germany is a major contributor too, especially in terms of the basic structure doctrine, specifies that powers vested in any organ of the State have to be exercised within the four corners of the Constitution, and further that organs created by a constitution cannot change the identity of the constitution itself. ; PARA 64 Ram Jethmalani v. Union of India, (2011) 8 SCC WHY NOT ABSOLUTE POWERS TO GOVT? The constitutionalism or constitutional system of Government abhors absolutism. Maru Ram v. Union of India & Ors. [(1981) 1 SCC 107]. • Power corrupts AND Absolute power corrupts absolutely. If it is vested; then it will turn into authoritarian, oppressive government. (DESPOTISM) • Jeopardise freedom of the people. • To preserve dignity & personality of the people.

HOW THE CONSTITUTIONALISM CAN BE IMPLEMENTED?

1. A written constitution embeds constitutionalism. 2. Independent judiciary with powers of Judicial Review. 3. Doctrine of Separation of powers with check + balances. No organ of the state may arrogate to itself powers beyond what is specified in the Constitution. I.R.Coelho V. State of Tamil Nadu AIR 2007 SC 861 4. Doctrine of Rule of Law 5. Free and Fair Elections. 6. Fundamental Rights of the People. 7. Federalism. 8. Decentralisation of powers. 9. Rule of Law These principles, if inbuilt, in a constitution, then we can ensure the constitutionalism.

D. CONSTITUTIONALISM AND CONSTITUTIONAL GOVERNANCE :

In one word ‘Limited Governance’ is the Constitutionalism, which is supposed to reflect in the Constitutional Law of a democratic state. Constitution of India is the Constitutional Law incorporating the Constitutionalism. The listed fundamental rights and guaranteed remedies, creation of judiciary as an impartial arbiter with all independent powers besides broad based legislative check on the executive are the reflections of such constitutionalism. From these essential characters the doctrines of judicial review, rule of law, separation of powers, universal franchise, transparent executive, fundamental right to equality and quality of life emerged and consolidated.

E. JUDICIAL ANALYSIS OF CONSTITUTIONALISM : 1. I.R.Coelho V. State of Tamil Nadu AIR 2007 SC 861 The principle of constitutionalism is now a legal principle which 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. 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 Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes.

2. Maru Ram v. Union of India, (1981) 1 SCC 107. 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. F. HOW IT CAN BE MISUSED BY CROOKED MINDS : When the Constitution of India was adopted on November 26, 1949 by the Constituent Assembly, its members were mindful of the challenges of governance. Speaking after the completion of his work, Dr. B.R. Ambedkar, Chairman of the Constitution Drafting Committee, said: “I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.” The members also recognised that the mere adoption of a good Constitution would not culminate in the values of constitutionalism permeating the civil and political culture in the country, nor could it ensure good governance.

G. CRITICISM OF THE CONSTITUTIONALISM : 1. Legal scholar Jeremy Waldron contends that constitutionalism is often undemocratic: “Constitutions are not just about retraining and limiting power; they are about the empowerment of ordinary people in a democracy and allowing them to control the sources of law and harness the apparatus of government to their aspirations”

This view does not hold well with Indian Constitution.

2. Constitutionalism has also been the subject of criticism by Murray Rothbard, who attacked constitutionalism as incapable of restraining governments and does not protect the rights of citizens from their governments:

[i]t is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government's own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted "checks and balances" and "separation of powers" in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers.

This can be related to India with Judicial Overreach by India Judiciary in Certain cases

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