Constitutionalism
The word ‘Constitutionalism’ refers to the basic ideology of adopting a set of principles while establishing a structure to govern a society via Constitutional principle of Rule of Law, which creates the entity of State, provide an optimal way for its functioning by granting sovereign powers to the State via Constitutional principle of Sovereignty, restricts the powers given to the State via principles such as Separation of Powers which can also be referred to as ‘Negative Constitutionalism’, as well as enables the State to function for the welfare of the people of the nation in an optimal manner which can also be referred to as ‘Positive Constitutionalism’. The Constitution can be said to be a document which enables the people of a nation to adopt to such ideology of Constitutionalism where the Constitution itself is supreme and the State has to abide by the principles laid down under the same. Such a structure creates a balance in a society by granting powers to function for the welfare of the society while keeping a check on the usage of such powers at the same time.
“Power tends to corrupt, and absolute power corrupts absolutely.”
~ Sir John Dalberg-Acton
The need for ‘Constitutionalism’ arises when a nation requires a body to govern its functioning to achieve the aim of maximising the welfare of the people of that nation, as it then becomes necessary to create a governing body, which is empowered with sovereign powers but at the same time it should not be able to misuse those powers. In the beginning, i.e., in ancient era, the idea of Constitutionalism was restricted to merely keeping a check and preventing the misuse of powers by the Sovereign. But as the idea grew with time, it became more mature and then developed a structure for optimal functioning of the State by creating a government by the people, for the people, to the people as well as executive and other institutional bodies to enable the State to optimally use the powers given to it.
Constitutionalism in Postcolonial India
This doctrine of Constitutionalism guided the makers of Constitution of India after India was declared independent in the year 1947 where a temporary government was created to function while the Constitution of India was being drafted by the Constituent Assembly, which took almost two and half years to get completed. It was these Constitutional Principles only which were adopted in the formation of Articles of the Constitution of India. Though the provisions of the Constitution of India were majorly adopted from the Government of India Act, 1935 but an additional essence of the Constitutionalism was created in the new Constitution drafted by the Drafting Committee after independence certain Constitutional Principles were adopted in the Constitution of India.
The Preamble of the Constitution of India declared the Constitution of India to be given to the people, by the people, for the people of India and it contains the prime goals behind the creation of the Constitution by its makers which involves making India to be a “Sovereign, Socialist, Secular, Democratic, Republic State”[1]. Earlier, the Preamble was not considered to be a part of the Constitution by the Supreme Court of India[2] and the narrow interpretation made the preamble to be just a reflection to the intention of the makers of the Constitution which cannot be considered to have any statutory implication and the same view was followed in the Golaknath’s case[3]. However, the view of the Supreme Court of India changed with the landmark judgment of Kesavananda Bharti’s case[4] in which the Supreme Court of India declared the Preamble of the Constitution to be a part of India which plays a vital role in the interpretation of the principles laid down by Constitution of India. It was held by the apex court that the basic structure of the Constitution of India cannot be changed by the virtue of the powers given to the legislature by the Constitution of India. The interpretation was more widened in the S.R. Bommai’s case[5] in which the Preamble was said to be a part of the basic structure of the Constitution of India. Thus, the Preamble to the Constitution of India can be said to be a main part of the Ideology of Constitutionalism which is incorporated in the Constitution of India.
Another important Constitutional Principle involves the concept of Judicial Review under the concept of Separation of Powers. The Concept of Separation of Powers can be reflected in the Constitution of India under Article 226 & Article 227 which empowers the High Courts and Article 32 and Article 136 of the Constitution of India which empowers the Supreme Court of India to access the powers of Judicial review in order to protect and implement the Constitution of India. The Constitution provides the supreme authority to the Apex Court of India to protect the Constitutionalism and the principles and ideologies laid down by the Constitution of India.
The Constitution of India, in order to keep a check on the sovereign powers given to the state, enables the Judiciary to review all the decisions taken by the legislature, judiciary or administration and provides Judiciary with the ultimate powers to overrule any enactment or amendment or decision by the legislature or any other body to be unconstitutional and thus void if the legislature is misusing the powers given to it by the Constitution of India. Thus, the Judiciary can be considered to be the watchdog of the Constitution which is provided with the duty to secure the basic essence of the Constitutionalism in the Constitution of India. However, the concept of Judicial Review was not considered to be the same since the beginning. In Shankri Prasad’s case[6] the Supreme Court held that the Constitution provides the legislature to amend the laws laid down by the Constitution and thus the Constitution can be amended by the legislature which cannot be said to be unconstitutional, and the same view was upheld in Sajjan Singh’s case[7]. However, in Golaknath’s case[8] the apex court held that the part III to the Constitution of India is immutable and cannot be amended by the Legislature, thereby restricting the powers of the legislature to amend the Constitution of India. A broad interpretation was finally given in the Kesavananda Bharti’s case[9] in which it was held by the apex court that though any provision of the Constitution can be amended by the Legislature, but the basic structure of the Constitution is immutable and must be kept secure as it is outside the scope of amendment by the Legislature.
A different era was witnessed by India during the times of emergency from 1975-1977 in which emergency was declared in India by the influence of the government of Mrs. Indira Gandhi who was convicted of being involved in corrupt practices for winning the general elections. In Raj Narain’s case[10], the election of Indira Gandhi was declared to be unconstitutional by the Allahabad High Court after which emergency was declared in India by the then ruling government of Mrs. Indira Gandhi. During this era, the concept of Constitutionalism seemed to have lost its essence in India and India was functioning more like a dictatorship for the period leading to violation of several Constitutional Principles. However, with the end of the period, Constitutionalism came back in India in its fullest form again.
Another important incident in the career of the Constitutionalism in India whereby the concept of Sovereignty was again applied by the legislature in the removal of Article 370 and Article 35-A from the Constitution of India whereby the state of Jammu and Kashmir was held to be an integral part of India in the year 2019.
In this way, India has adopted the concepts of Constitutionalism in the postcolonial era after its independence. The Constitution still remains to be the supreme authority which creates and empowers the State and Judiciary to function hand in hand but at the same time keeps a check on both of their usage of powers.
[1] See Preamble to ‘The Constitution of India, 1950’.
[2] Berubari Union v. Unknown (1) (1960) 3 SCR 250.
[3] I.C. Golak Nath v. State of Punjab, (1967) 2 SCR 762.
[4] Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225.
[5] S.R.Bommai v. Union of India (1994) 3 SCC 1.
[6] Shankari Prasad v. Union of India, AIR 1951 SC 458.
[7] Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
[8] I.C. Golak Nath v. State of Punjab, (1967) 2 SCR 762.
[9] Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225.
[10]State of Uttar Pradesh v. Raj Narain (1975 AIR 865, 1975 SCR (3) 333).