UNIT-2

CONSTITUTIONALISM AND THE CONSTITUTION

1. Constitutionalism and National Constitutions
2. World Constitutional Experiences

Lecture 02
Unit 2
Constitutionalism

The Constitution of a country provides the basis for the governance of the country. The
Constitution contains the law and principles according to which a State is governed. A
Government which is controlled or limited by a Constitution, is called a Constitutional
Government.

‘Constitutionalism’ means belief in a constitutional Government or belief in constitutional

principles. Constitutionalism is a philosophy which is essential for a democratic setup. It
ensures that the freedoms of the individual are given primacy and the State does not encroach
upon the liberty of the citizen. It ensures that the government is limited and prevents it from
turning the democratic setup into dictatorial and authoritative.

Constitutionalism is a philosophy which is evolutionary in nature. But the central point of

Constitutionalism is a “Limited Government”. Constitutionalism recognises the need for a
government but at the same time also insists upon restraining its (government’s) power.

Constitutionalism is a political theory that states that a government's power is limited by a

constitution, which outlines what the government can and cannot do. The theory is based on
the idea that the government's authority comes from the people, and that the constitution is
meant to express the will of the people.

Constitutionalism's purpose is to ensure that the government doesn't overstep its bounds, and
that it doesn't take certain actions, even if they follow proper procedures or public opinion.

Broadly, modern constitutionalism requires imposing limits on the powers of government,

adherence to the rule of law, and the protection of fundamental rights.

Constitutionalism refers to the act that defines that a country or state should be governed by
specific rules or the ruling document, i.e., the Constitution.

A constitution is a ruling document within a country that defines the specific rules and
behaviours to govern and run the country.

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The ideas of Constitutionalism and the Constitution are of the people and for the people. They
work in favour of the people to ensure the protection of their human rights. It is a philosophy
that restricts the government to some extent to run the country properly.

The document containing laws and rules which determine and describe the form of the
government, the relationship between the citizens and the government, is called a
‘Constitution’.

As such, a Constitution is concerned with two main aspects i.e. the relation between different
organs and different levels of government and between the government and the citizens. The
Constitution of a country provides the basis for governance of the country. A Constitution
contains basic or fundamental laws of the land and established rule of law.

In short, Constitution contains law and principles according to which a State is governed. A
government which is controlled or ruled or limited by a Constitution, is called a constitutional
government.

Constitutionalism is the idea that ensures the laws restricting the ruling body from wrongly
exercising power.

Elements of constitutionalism

According to Louis Henkin Constitutionalism implies,

1. Popular sovereignty
2. The supremacy of the Constitution and Rule of Law
3. Political Democracy
4. Representative Limited Government
5. Separation of Powers
6. Control of the Military force
7. Police governed by Law and Judicial Control
8. An Independent Judiciary

All these elements restrict the power of the State in a particular way.

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Elements of Constitutionalism

It implies the following elements which characterise the Constitutionalism in India.

• Sovereignty
It initiates that the government is free from any bias from any particular authority. In short, it
ensures the government is of the people, by the people, for the people.

• Supremacy of the Constitution and Rule of Law

It denotes the country is run through rules, not authority or powers. No one can decide the
governance except the laws and regulations which have been already stated.

• Political Democracy
In a democracy, individual rights and equality should be protected. It declares equal rights to
all the individuals within the country.

• Representative-limited Government
It declares the representatives are selected through a proper election process by the people.
They elect representatives for their welfare, so they should be accountable and answerable to
the general public for their actions.

• Separation of Power
It divides the whole power into three branches, i.e., Executive, Legislative, and Judiciary. This
helps keep checks and balances in each area separately and in a better way.

• Control of the Military Force

It denotes that the Government should control the Military force in such a way that the Military
cannot have any way to interfere in the democratic decision-making process of the country.

• Police Governed by Law and Judicial Control

It ensures the Police power should be judged by the Law and Judicial control. Police have no
right to harm the dignity of the people.

• An Independent Judiciary
The independence of the Judiciary system ensures the freedom of the democratic power in
India. It means that the government is free to run the country if the laws support it.

A constitution is no guarantee for constitutionalism.

A written Constitution is no guarantee for Constitutionalism. Even Nazi Germany had a

constitution but that does not mean that it adhered to the philosophy of Constitutionalism be it
a negative or positive aspect of it.

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Importance of Constitutionalism

Constitutionalism is the basic structure on which the governance of a country or state strictly
depends. Its importance cannot be ignored in any aspect. Some key points are mentioned
below:

• It is a set of norms that prevents the state from abusing its power.

• It ensures that the people have liberty and get justice which is crucial for a democratic
country such as India.

• It ensures proper governance within the country or state as it puts restrictions on the
overuse of state power, thereby protecting the rights of the democracy.

• It helps in the better development and welfare in the developing countries as it denotes
equal rights for all.

• It ensures that the state is based on specific rules and guidelines, which states every
person has the right to human dignity.

Differences Between Constitutionalism and Constitution

Constitution and Constitutionalism share the same interest, but some basic differences still exist
between them.

• The Constitution is a set of rules or laws created by the government. Constitutionalism

is the idea or philosophy that government should run through the rules and regulations
stated in the Constitution.

• The Constitution is considered as the prime law of the country, whereas

Constitutionalism is the act that allows the Constitution to function.

• The Constitution states the rules and regulations to be followed, but Constitutionalism
states the restrictions against the government.

Conclusion

Constitutionalism is the behaviour that enables the better governance of the country and
restricts the overuse of powers within the country. It works in respect of the people and the
welfare of society.

The concepts of Constitution and Constitutionalism are closely related; one cannot survive
without the other. However, they are different in their perspectives.

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 Constitution of India

Preamble

India is a democratic country, denoting that the government or ruling body should be
represented by the people of the country.

The Constitution of India begins with a Preamble. The Preamble contains the ideals objectives
and basic principles of the Constitution. The Preamble to the Constitution has played a
predominant role in shaping the destiny of the country. The Preamble is of great utility as a
guide to the interpretation of the constitutional provisions of the Constitution.

The Preamble, in brief, explains the objectives of the Constitution in two ways; one, about the
structure of governance and the other, about the ideals to be achieved by India. It is because of
this, that the Preamble is considered to be the key of the Constitution.

The ‘objectives’ specified in the ‘Preamble’ contains the basic structure of the Constitution
which cannot be amended in exercise of the power under Article 368 of the Constitution.

The preamble is an introductory statement that defines the objectives and reasons behind a
legislative or rule. The preamble of the Indian Constitution declares the country to be a
sovereign, secular, socialist and democratic republic. The objective behind the preamble is to
seek justice and equal rights for the general public in the country.

The preamble of the Indian Constitution is to provide liberty to the general public in India. It
denotes that all people are equal before the law and should be served with equality.

As India is a democratic country, it has its own Constitution, which guides the government in
ruling the country in a better manner for the public’s welfare.

The Constitution in India consists of the fundamental laws and principles of the country written
by Dr B. R. Ambedkar, who is known as the father of the Indian Constitution. It was adopted
on 26th November 1949 with the help of the Constituent Assembly and was effected from 26th
January 1950. It lays down the fundamental framework and laws to run the country while
following human rights.

As the Supreme Court said in S.R. Chaudhuri v. State of Punjab (2001) -

“the mere existence of a Constitution, by itself, does not ensure constitutionalism.

What is important is the political traditions of the people and its spirit and determination to
work out its constitutional salvation through the chosen system of its political organisation.”

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Unless primacy to democratic policies and individual rights is not given, Constitutionalism
cannot survive. Subtle assaults to individual rights especially freedom of Speech and
Expression and privacy etc., undermine Constitutionalism.

Again in R.C. Poudyal v. Union of India (1994) court said that,

“Mere existence of a Constitution, by itself, does not ensure constitutionalism or a

constitutional culture. It is the political maturity and traditions of people that give meaning
to a Constitution which otherwise would merely embody the political hopes and ideals”.

For constitutionalism, a constitution needs to have some qualities which would either restrain
the government from acting against its citizens or compel it to act for securing a dignified life
to each one of them.