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CONSTITUTION, CONSTITUTIONAL LAW, AND CONSTITUTIONALISM: AN

OVERVIEW WITH REFERENCE TO THE INDIAN CONTEXT BY DEEPAK R. TONGLI

Research · May 2024

DOI: 10.13140/RG.2.2.22717.68328

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 1. INTRODUCTION

Public law is a system of laws that regulate the interactions between private persons (such as you)
or private organizations (such as a company or charity) and public entities (such as government
departments and local governments) or private organizations performing a public role. In any legal
system juristic principles are evolved in the context of rights and the law as command regulates
the relationship between individuals and also the relationship between individuals and the
government.

Public Law is that part of the law, which governs the relationship between the State and its agencies
with its subject and also the relationship between individuals directly concerning the society.
According to Loughlin, ‘Public law is a form of political jurisprudence that incorporates no
transcendental or metaphysical ideas of justice and goodness; it is concerned solely with those
precepts of conduct that have evolved through political practice to ensure the maintenance of the
public realm as an autonomous entity.’ Public Law deals with social problems in a broad context
and may include the following heads: Constitutional Law, Administrative Law, Criminal Law and
Criminal Procedure, Law of the State considered in its quasi-private personality, Procedure relating
to the State as so considered and Judge made Law. Public law was originally defined by the Roman
as Res publica – i.e. ‘the public thing,’ or in the public interest and common good, and based on
the differentiation between the state and the government1

In short, Public Law governs the relationship between the State with its citizens and also the
relationship between individuals directly concerning Society. Constitutional Law,
Administrative Law, Criminal Law, and Criminal Procedure are the subject matter of Public
Law.

“Our Constitution is a ray of HOPE; H for Harmony, O for Opportunity, P for

People’s participation, and E for Equality.”- Narendra Modi

1
Kumar, Anuj. “Law and Justice: Public Law.” Legal Desire, June 2016, p. 120.

1
 1.1. CONSTITUTION
The Constitution is a document that outlines the laws and guidelines that were decided
upon by the various political forces in order to govern the country. A constitution is a
collection of basic ideas or established precedents that serve as the legal foundation of a
government. It establishes the fundamental concepts upon which a state is founded. A
Constitution is a legally binding document that establishes the structure and primary duties
of the government. A country’s Constitution outlines the fundamental foundation of the
political system that will rule its people. It establishes the powers of the state’s primary
organs, delineates their tasks, and governs their interactions with one another and with the
public.

A constitution is a one-of-a-kind legal document. It enshrines a unique form of the norm

and sits atop the normative pyramid. Throughout history, it has shaped the look of the state
and its objectives. It shapes the underlying political beliefs of the states. It establishes the
groundwork for its social principles. It makes decisions on its commitments and
orientations.

The Indian Constitution is the paramount law in India. It defines the government’s core
political principles, methods, practices, rights, authorities, and obligations. It confers
constitutional supremacy, not parliamentary supremacy because it was not drafted by the
Parliament but by a constituent assembly and ratified by the people in a preamble. The
legislature cannot override it.2 With a parliamentary form of government, it is a Sovereign
Socialist Secular Democratic Republic. The President is the constitutional head of the
Executive of the Union. Constitution stipulates that there shall be a Council of Ministers
led by the Prime Minister to assist and advise the President. Thus, the actual executive
authority is vested in the Council of Ministers, headed by the Prime Minister.3

Constitution is the way of life of a citizen-body – Aristotle

Government without a constitution is power without a right - Thomas Paine

2
Basic Structure Doctrine
3
Dr. Durga Das Basu, Introduction to the Constitution of India 52 (LexisNexis, Nagpur, 20th Edn., 2008).

2
 1.2. CONSTITUTIONAL LAW
There is no definite definition of constitutional law. According to one broad definition,
constitutional law is the branch of national law that controls public administration systems
and the relationship between the person and the state. Constitutional law presumes the
existence of the state and contains rules that control the organization and operations of the
primary organs of government, as well as their relationships with one another and with the
citizen. Constitutional law does not include the whole legal system, but it is directly
concerned with how questions relating to rights, powers, and obligations are resolved.
Most jurisdictions incorporate constitutional law in a written document like India,
however, for some historical reasons some don’t have written documents like the U.K.4

The basic role of constitutional law is to determine the political center of gravity of any
particular state by assuming the supremacy of law in state functioning. The Constitution
of India establishes India as a Sovereign, Socialist, Secular, Democratic, Republic with a
Federal System, a Parliamentary form of government in the Union and the States, and an
Independent Judiciary. It also specifies the government’s structure, methods, powers, and
obligations, as well as essential human rights that are fundamental in the administration
of the nation in the form of Basic Rights and Directive Principles of State Policy.
Constitutional Law is a part of public law. It establishes the political structure of the State
and its authorities, as well as substantive and procedural constraints on the exercise of
governing authority. It is concerned with the relationship between the person and the state
from a certain point of view, namely the concept of law. The application of basic principles
of law based on the document, as interpreted by the Supreme Court, is constitutional law.

According to Salmond, “Constitutional Law is the set of those legal ideas that establish a
State’s Constitution—that is, the basic and fundamental components of the State’s
formation.”

“We have a government of limited power under the constitution, and we have
got to work out our problem on the basis of law.” -William Howard Taft

4
Kumar, Anuj. “Law and Justice: Public Law.” Legal Desire, June 2016, p. 120.

3
 1.3. CONSTITUTIONALISM
Constitutionalism refers to restricted governance or government limitations. It is insistent
that the government’s powers be limited. Absolute authority may result in an authoritarian,
repressive regime that curtails people’s freedom. Only when a country’s Constitution
strives to decentralize power rather than concentrating it in one spot, and also sets
additional limits and limitations on it, then it said that it has not just a constitution but also
Constitutionalism. People’s freedom is jeopardized by unlimited authority. Power
corrupts, and absolute power corrupts absolutely, as has been aptly observed. If the
Constitution gives the legislative or the executive unrestricted authority, it might lead to
an authoritarian, tyrannical government. As a result, the Constitution should be saturated
with Constitutionalism in order to safeguard the individual’s core liberties as well as his
dignity and identity.

There is a distinction between the terms “Constitution” and “Constitutionalism.” A nation

may have a constitution, but it does not always have Constitutionalism. The constitution
should not only provide powers to the different institutions of government but also check
those powers. The Constitution acknowledges the necessity of the government but also
focuses on limiting governmental powers. Constitutionalism envisions checks and
balances, as well as limiting the authority of the legislative and the executive, rather than
making them uncontrollable and arbitrary.

The concept of constitutionalism is notably connected with the presence of a written

constitution from which the state’s authority and legitimacy may be considered to come,
and from which the state’s power may be limited and the rights of people and minorities
protected.5

“The essence of constitutionalism in a democracy is not merely to shape and condition

the nature of majorities, but also to stipulate that certain things are impermissible, no
matter how large and fervent a majority might want them.” – George Will

5
Prof. Nicholas Sunday, “Constitutional Law, Constitutionalism and Democracy” available at:
https://www.grin.com/document/213984 (Visited on April 2, 2023).

4
 2. EVOLUTION OF THE CONSTITUTION OF INDIA

A Constitution means a document having a special legal sanctity that sets out the framework and
the principal functions of the organs of the Government of a State and declares the principles
governing the operation of those organs.6

A Constitution is essential to the governance of a nation as well as its existence and functioning as
a politico-legal body. They are a collection of laws and regulations for a state that outline the basic
concepts that govern the state. It explains the key institutions of the state (Executive, Legislature,
and Judiciary) and their relationships. It restricts the use of power and defines people’s rights and
responsibilities.

A constitution is a set of laws and regulations that regulate how a country is governed. The
democratic and secular framework of the country is established by the Constitution. The Indian
Constitution, which is the longest in the world and lays the groundwork for political doctrine,
practices, and governmental powers. On November 26, 1949, the Indian Constitution was written,
and it became law on January 26, 1950.

Constitutional law isn’t explicitly defined in any way that is determinate. According to the term’s
established use, it refers to the rules that set out the structure, interrelationships, and primary duties
of the government’s major organs. Both legal rules in the strict sense and usages, sometimes known
as conventions, that are acknowledged as binding by all parties involved in government without
being legislated make up the rules. Many of the procedures and laws that govern how our
government is run do not fall within the purview of the law in the sense that violating them does
not automatically trigger legal action. While the constitutional lawyer is largely focused on the
legal components of government, constitutional law requires some understanding of the key tenets
of constitutional history as well as how our political institutions function.7

6
J.N.Pandey, The Constitutional Law of India 1 (Central Law Agency, Allahabad, 10th Edn., 1980).
7
Ibid

5
2.1. HISTORICAL PERSPECTIVE OF THE INDIAN CONSTITUTION
The East India Company, a trading organization led by the British, first landed in India in
1600. The business enjoyed unique commercial privileges in India according to a charter
issued by Queen Elizabeth I. At first, their primary activity was commerce, and they had
no political goals. Once they prevailed in the Battle of Buxar in 1764, this situation was
altered.

The business, which up until this point had solely been involved in trading, now has rights
to income in Bengal, Bihar, and Orissa. This signaled EIC’s emergence as a dominant
territorial power. During the “Revolt of 1857,” the corporation continued to run India until
1858 when the British Crown immediately took over management of the country’s affairs.
In 1928, the All-Parties Conference convened a committee in Lucknow to prepare the
Constitution of India, which was known as the Nehru Report. Most of India was under
direct British rule from 1857 to 1947. Upon independence, it became clear a new
constitution was need to be created. But for that, all of India needed to be brought into the
union.

India has divided into two main parts before 1947; British India, which was made up of
11 provinces, and the princely states, which were administered by Indian princes under a
subsidiary alliance policy. This meant the Princely States needed to be convinced to
become a part of the Indian Union. Either by force or diplomacy. Sardar Vallabhai Patel
and V.P Menon did this unenviable task. Until this happened India was still legally a
dominion under the British, responsible for external security. Thus, the constitution of
India repealed the Indian Independence Act of 1947 and the Government of India Act of
1935 when it became effective on 26 January 1950. India ceased to be a dominion of the
British Crown and became a sovereign democratic republic with the constitution. Several
of British India’s legacy systems are still in use today despite the two countries merging
to create the Indian Union.

The historical roots and development of the Indian Constitution may be traced to a number
of laws and regulations that were issued before Indian Independence.

6
 2.2. EVOLUTION OF THE INDIAN CONSTITUTION
The evolution of the Constitution of India can be traced back to various acts and policies
undertaken by the Company and the British administration. The constitution of India came
into force on January 26, 1950, under Dr. BR Ambedkar (Farther of the Constitution of
India) and transformed the Dominion of India into the Republic of India. It had been
drafted, discussed, and finalized by the Constituent Assembly between 1946 and 1949.
The evolution can be studied under two broad timelines:
I. The Company Rule (1773-1858)8
II. The Crown Rule (1858-1947)9

There are remarkable milestones that have shaped the Constitution of Inda into what we
see today. Briefly, I am throwing light on these two eras leading to the Evolution of our
Constitution.

2.2.1. THE COMPANY RULE (1773-1858)

The British Eash India Company landed on Indian Motherland in 1600 A.D through
a Charter issued by the Queen of England. This charter provided exclusive trade
rights for the company on India’s land. If we look contemporarily at this time, India
was ruled by various kingdoms and rulers. There was a fine intermingling of
cultures in this period. Indians started witnessing which they never came across. In
all around 8 enactments / major developments took place during this period. They
are;
1. The Regulating Act, of 1773
2. The Pitts India Act, of 1784
3. The Charter Act, of 1793
4. The Charter Act, of 1813
5. The Charter Act, of 1833
6. The Charter Act, of 1853
7. The Government of India Act, of 1858

8
M. Laxmikanth, Indian Polity for Civil Services Examinations 1.3 (Tata McGraw Hill: New Delhi, 3rd Edn., 2011).
9
Ibid

7
2.2.1.1. The Regulating Act of 1773
The Regulating Act of 1773 was passed by the British parliament as a result
of the dual system, which Robert Clive had instituted in 1765 but which was
ineffective. It was the first step by the British parliament to regulate and
control the affairs of the East India Company. It laid the foundation of
centralized administration in India by making the Governors of Bombay and
Madras presidencies subordinate to the Governor-General of Bengal. For
the first time ever, the political and administrative functions of the company
in India were officially recognized.

2.2.1.2. The Pitt’s India Act of 1784

To address the problems with the Regulating Act of 1773, the British
government introduced the Pitts India Act in 1784. It was part of a
decentralization of administration strategy that had started with the 1773
passage of the Regulating Act. It introduced the system of double
government. A Board of Control was created for managing political affairs
and the Court of Directors was entrusted with managing only the
commercial affairs of the company.

2.2.1.3. The Charter Act of 1793

The British Parliament enacted the Charter Act of 1793 to extend the East
India Company’s charter. Over the next 20 years, the company’s trading
monopoly with India was authorized by this statute.

2.2.1.4. The Charter Act of 1813

The Charter Act of 1813 was passed to renew the company’s charter for
another 20 years. The company’s monopoly to trade in the east was severely
opposed by the local British merchants including some parliamentarians. It
ended the trade monopoly of the company except for trade in tea and trade
with China.

8
 2.2.1.5. The Charter Act of 1833
Centralization of the Indian administration reached its zenith after the
elevation of the Governor General of Bengal as the Governor-General of
India. India’s first Law commission was constituted which was responsible
for drafting the Indian Penal Code (IPC) which was enacted later in 1860.

2.2.1.6. The Charter Act of 1853

The British parliament’s last adoption of a charter was the Charter Act of
1853. It marked the beginning of Indian participation in government and
lawmaking. The legislative and executive powers of the Governor General’s
Council were separated for the first time. A separate Indian (Central)
legislative council was constituted, with six members serving as legislative
councilors. The Indian (Central) Legislative Council was like a small
Parliament (along the same lines as the British Parliament).

2.2.1.7. The Government of India Act, 1858

The Government of India Act, 1858 is also known as the Act of Good
Government of India. The act was enacted to transfer the powers of the
government, administration, revenue and territories to the British crown. Its
objective was to keep the Indian Government in check. However, no
substantial changes were brought in the system of Governance which
prevailed in India.

2.2.2. THE CROWN RULE (1858-1947)

The Great Revolt of 1858 has changed the fate of India forever. With the enactment
of the Government of India Act 1858, India went under the direct control of Crown
of England. During this period there were major Constitutional Developments that
have taken place leading to the final document that we see this day. Major
milestones during the crown period are briefly discussed as under; 10

10
M.Laxmikanth, Indian Polity for Civil Services Examinations 1.5 (Tata McGraw Hill: New Delhi, 3rd Edn., 2011).

9
 1. The Indian Councils Act of 1861
2. The Indian Councils Act of 1892
3. The Indian Councils Act of 1909 [Minto-Morley Reforms]
4. The Government of India Act, 1919 [Montague-Chelmsford Reforms]
5. The Government of India Act, 1935
6. Indian Independence Act of 1947

2.2.2.1. The Indian Councils Act of 1861

The Indian Councils Act of 1861 introduced representative institutions by
including Indians in the drafting of laws. It reversed the Company’s policy
of centralization, which had been initiated by the Regulating Act of 1773
and concluded with the Charter Act of 1833.

2.2.2.2. The Indian Councils Act of 1892

In a very limited sense, it initiated the principle of representation. As a
result, the number of Indians increased in the legislative councils. This
enabled leaders like Gopal Krishna Gokhale to enter the councils and
enhance political consciousness among the masses.

2.2.2.3. The Indian Councils Act of 1909 [Minto-Morley Reforms]

Also called the Minto-Morley reforms Indians were given membership in
the Imperial Legislative Council for the first time. This act legalized
‘Communalism’, and Lord Minto came to be known as the Father of
Communal Electorate in India.

2.2.2.4. The Government of India Act, 1919 [Montague-Chelmsford Reforms]

The Government of India Act of 1919 was based on the recommendations
of a report by Edwin Montague, the then Secretary of State for India, and
Lord Chelmsford. It led to the seed for the formation of the Indian
Constitution. The Government of India Act intended to bring a completely
responsible government to the British Indian provinces. Large-scale

10
 elections were also conducted for the first time in all the provinces in 1937
as per the provisions of the Act. Many of the provisions and the framework
of the Indian constitution have been taken from this act, and hence, this act
is also called the ‘Mini Constitution’.

2.2.2.5. The Government of India Act, 1935

This is yet another landmark legislation aiming towards the free India
concept. Some very important developments came up through this Act. It
was suggested to create an all-India federation made up of British India and
the princely kingdoms. But this didn’t materialize. Subjects were divided
between the Centre and the provinces. The Centre was in charge of the
Federal List, provinces were in charge of the Provincial List and there was
a Concurrent List that both catered to. Diarchy was abolished at the
provincial level and introduced at the center. The provinces received more
autonomy, and the bicameral legislature was established in 6 of the 11
provinces. The Indian Council was abolished, and a federal court was
constituted. Burma and Aden were severed from India. This act provided
for the establishment of the RBI. This Act remained in effect till the new
Indian Constitution took its place.

2.2.2.6. The Indian Independence Act, 1947

The Mountbatten Plan was accepted by all parties. The Indian National
Congress initially opposed the partition of the country but finally accepted
it as an inevitable process. The plan was accepted by both INC and the
Muslim League. The proposal was given immediate effect by enacting the
Indian Independence Act 1947. It declared India as an Independent and
Sovereign State. Established responsible Governments at both the Centre
and the Provinces. It designated the provincial governors and Viceroy of
India as the constitutional (normal heads). It assigned dual functions
(Constituent and Legislative) to the Constituent Assembly and declared this
dominion legislature as a sovereign body.

11
2.2.3. THE BIRTH OF THE INDIAN CONSTITUTION
India is the largest democracy in the world, living and breathing in the air of
sovereignty has been gifted with the lengthiest constitution of the world that
consists of 448 Articles (395 originally), 25 Parts (22 originally), 12 Schedules (8
originally), 105 constitutional amendments (first was enacted in 1950).

The Story behind the making of the Indian Constitution receives a significant
position in the history of India. Let me have a brief overview of the Historical
moments that led to the birth of the Indian Constitution.

The Government of India Act, of 1919 is the maiden step towards the making of
the Indian Constitution. It announced that in 10 years from 1919, a royal
commission will be set up to report on the working of the particular act, though the
commission was appointed in 1928, even though it was to be appointed in 1929 as
per the 1919 Act. This Commission is popularly known as the Indian Statutory
Commission or The Simon Commission.

2.2.3.1. The Indian Statutory Commission OR The Simon Commission, 1928

It was a group of seven Members of the British Parliament under the
chairmanship of Sir John Simon. The commission arrived in India in 1928
to study constitutional reform in Britain’s largest and most important
dominion. The purpose of this commission was to report on the working of
the Indians established under the Government of India Act 1919 and to
decide the political future of India.

India’s Response: As a consequence of the protest, the Muslim League and

the Indian National Congress boycotted the commission. Lord Birkenhead,
India’s Secretary of State, issued a challenge to Indian leaders to design a
constitution, which they accepted.

12
2.2.3.2. Nehru Committee Report, 1928
In response to the Challenge being accepted by the British, the first major
attempt was done by appointing a committee with the task to draft Indian
Constitution. The committee was under the leadership of Motilal Nehru
with Jawaharlal Nehru as Secretary, Ali Imam, Tej Bahadur Sapru, Mangal
Singh, M S Aney, Subhas Chandra Bose, Shuaib Qureshi, and G R Pradhan
where the other members. The draft of the constitution prepared by the
committee was called the Nehru Committee Report or Nehru Report. The
report was submitted in the Lucknow session of the all-party conference on
August 28, 1928. This was the first major attempt by Indians to draft a
constitution for India.

2.2.3.3. Need for a Constituent Assembly

The seed for the formation of the constituent assembly was sown initially
in 1934 by the Pioneer of the Indian Communist Leader Mahendra Nath
Roy (M.N Roy). Later, in 1935, the Indian National Congress (INC)
officially demanded the setting up of a Constituent Assembly for framing
the Constitution of India.

British Response: In response to the above demand, the British proposed

the ‘August Offer’ in early 1940. This plan acknowledged Indians’ right to
prepare their own constitution after the conclusion of the Second World War
and called for the creation of an advisory war council and the involvement
of more Indians in administration. Both the Muslim League and the
Congress Working Committee declined the offer.

2.2.3.4. Cripps Mission, 1946

The Cripps Mission, headed by Sir Stafford Cripps, was sent in March 1942.
It was entrusted with drafting a draft proposal on the framing of an
independent constitution after the end of World War II. However, it also
failed in its objective.

13
 2.2.3.5. Cabinet Mission, 1946
In order to maintain India’s unity and give it independence, the Cabinet
Mission traveled to India in 1946 to negotiate the handover of authority
from the British Government to the Indian leadership. It held discussions
with representatives of British India and the Indian States to set up a
Constituent body. And, also put forth a scheme for the formation of the
Constituent Assembly. Based on the recommendation of the commission,
the Constituent Assembly was formed in November 1946.

The constituent assembly was established in November 1946, and its first meeting
took place in December of that same year. The constituent assembly created a
drafting committee under the leadership of Dr. BR Ambedkar to create a draft of
the Indian Constitution. The final text of the constitution was prepared in about 11
sessions and 167 days, or exactly 2 years, 11 months, and 18 days. A total of around
2000 amendments were made before its final draft.

2.2.4. SOURCES OF THE INDIAN CONSTITUTION

The constitution of India is the supreme law of the land. It is the longest-written
constitution in the world. Dr. B. R. Ambedkar is regarded as the father of the Indian
constitution. The articles defined under the Constitution of India are taken from
many constitutions and ideals of many countries in the world. Let’s see the sources
which helped the drafting committee to frame the Constitution of India. A glimpse
of a few sources is as under;

Government of India Act, 1935 Irish constitution (Ireland)

• Federal Scheme • Directive Principles of State
• Emergency Provisions Policy
• Public Service Commissions • Nomination of members to
• Office of Governor Rajya Sabha
• Judiciary • Method of Election of
• Administrative Details President

British constitution Australian constitution

• Parliamentary form of
government

14
 • The idea of single citizenship • Freedom of trade and
• The idea of the Rule of law commerce within the country
• Writs and between the states
• Institution of Speaker and his • Power of the national
role legislature to make laws for
• Lawmaking procedure implementing treaties, even on
• Procedure established by Law matters outside normal Federal
jurisdiction
• Concurrent List
Constitution of South Africa French constitution
• Procedure for amendment • Republic and the ideals of
• Election of Rajya Sabha Liberty, Equality, and
members Fraternity in the Preamble
Constitution of Germany Constitution of Soviet Union (USSR)
• Emergency powers to be • Fundamental Duties under
enjoyed by the Union Article 51-A
• Suspension of Fundamental • A Constitutionally mandated
Rights during an emergency. Planning Commission to
oversee the development of the
economy
Constitution of Russia Constitution of Japan
• Fundamental Duties • Procedure Established by Law
• Idea of Social, Economic, and
Political Justice in the
Preamble
Constitution of the United States
• Preamble
• Fundamental Rights
• The federal structure of
government
• Electoral College
• Independence of the judiciary
and separation of powers
among the three branches of
the government
• Judicial review
• President as Supreme
Commander of Armed Forces
• Equal protection under the law

India is a diverse country in terms of its culture, its people, and its territory, which
is why the drafting committee took so long to finish the draft. As a result, the
Constitution of India’s historical development can be traced back to numerous
statutes before the country attained independence.

15
 3. ELEMENTS OF A GOOD CONSTITUTION

One of the essentials of a democratic government is a good and well-drafted constitution. This is
so because the constitution of a country is capable of increasing or decreasing the effectiveness
and practice of true democracy in that country. Every Constitution is unique to its country’s nature
and requirements. India, with a diversified culture and tradition, follows Unity in Diversity. The
Constitution of India is a comprehensive legal document to the whole nation that guides the
principles of law of the land. Every Constitution happens to be the best as per their country’s need
however, I have made an attempt to identify some most common qualities that form a part of a
Perfect Constitution or a Good Constitution.11 They are;

3.1. Clarity and Definiteness: By “clarity and definiteness,” we mean that every provision of
the Constitution should be drafted in a way that makes it apparent what it means. This
helps even the common man of the country to read and understand the provisions
envisaged.

3.2. Brevity: The Constitution should be in a precise form covering all the important aspects
and not including unimportant parts. There should not be ambiguity in the texts of the
Constitution.

3.3. Comprehensiveness: The Constitution should apply to the whole country. There should
be mention of powers and distribution of powers between the Centre and State. Mention
should also be made about the important matters relating to the government and citizens’
rights and duties.

3.4. Flexibility: The constitution should not be too rigid to hinder the process of amendment
when needed. One of the most important characteristics of a good constitution is its ability
to adapt to a changing society and must be flexible to some extent. It must always adapt

11
“Essential Qualities of a Good Constitution” available at: https://www.politicalsciencenotes.com/articles/7-
essential-qualities-of-a-good-constitution/320 (Visited on April 2, 2023)

16
 to the social, political, economic, technological, and other changes that are inevitable in
the life of a country for its development and process.

3.5. Declaration of Rights: A good constitution must contain the fundamental rights of the
people. In the constitutions of countries like India, the Soviet Union, China, France,
America, Japan, and Italy such types of declarations have been made.

3.6. Independence of Judiciary: One of the most prominent features of a Perfect Constitution
is the Independence of the Judiciary. The judiciary should not be under the control of the
executive and it should function freely and act as the guardian of the Fundamental Rights
of the people without favor or fear.

3.7. Directive Principles of State Policy: In a good constitution mention must be made of the
Directive Principles of State Policy, because it helps in the establishment of a welfare state.
These principles also serve as a beacon for the government. Though these principles have
been mentioned in a few constitutions of the world, it is useful and not harmful to mention
them. These principles have been included in the Constitution of India and Ireland.

3.8. Separation of Powers: Separation of Powers is the most crucial phenomenon in a perfect
constitution. Distributing political authority across the three branches of government aids
in preventing the concentration of power in a single individual. Based on this, a sound
constitution must make sure that the political powers are fairly distributed among the
several branches of the government and that they do not conflict.

The “Good Constitution” in a democratic country seeks to balance the morality of law and the
morality of government. The good Constitution can be considered at the levels of abstraction
of the relationship to human rights or of the progression from parliamentary to constitutional
supremacy.12 Indian Constitution is a replica of World Constitutions and is one of the most
comprehensive texts in the World.

12
Sir John Laws, “The Good Constitution” 71 The Cambridge Law Journal 567 (2012).

17
 4. PURPOSE AND FUNCTIONS OF A CONSTITUTION

A constitution’s primary goal is to provide a workable instrument that will help an association
better organize itself. With the creation of a constitution, the uncertainty and confusion that
would have pervaded an association’s daily operations are reduced. A constitution guarantees
the efficient operation of the government and outlines in plain terms what should be done and
what should not be done.

A tool used to achieve particular political goals is a constitution. The essential goals and
guiding principles of state policy are highlighted by the Nigerian constitution, which also
highlights the purpose of the government.

The different governmental organs’ respective rights and functions are assigned and distributed
under the constitution. The kind of government to be used, whether unitary or federal, is
specified. The constitution establishes the requirements for candidates running for office and
those being appointed to different government positions.

By stating and promoting political ideas and their objectives, the Constitution plays a crucial
role in education. It arouses political ideals. The constitution gives people the chance to
understand their responsibilities to the government and its institutions. Foreigners are given
the chance to apply for citizenship of a nation via a set method. The list of the rights of the
people who make up the organization is another crucial function of the Constitution. While the
Constitution did not create these rights, it does guarantee that they are safeguarded.

The kind of party system that will be used in a state is specified in the constitution. Moreover,
it outlines the steps that must be taken in order to create a political party and the actions that
parties must do in order to run for office. A constitution also details the method to be followed
when revising it. It specifies whether a constitution may be amended by a simple majority or a
two-thirds majority of parliamentarians. Moreover, it specifies whether or not a referendum
must be held to get public opinion on certain modifications.

18
 5. EVOLUTION OF THE CONSTITUTIONAL LAW IN INDIA

The term “constitution” is a French term and refers to the set of fundamental rules and
regulations that govern the functioning of a nation-state or any other organization. A state’s
constitution is the supreme law of the land and thus requires higher standards of legitimacy
and integrity. It outlines a state’s fundamental principles, administrative structures, procedures,
and fundamental rights of individuals while defining the directions for a state’s development.

Constitutional law is the foundation for all laws within a specific jurisdiction or geographic
area. It includes the fundamental principles by which the government exercises its authority
and usually relates to a ratified constitution or official charter. It also outlines the basic rights
of individual citizens and defines how the central government and state governments are to
function. Constitutional law usually changes over time as the way the court system and
legislative bodies interpret the law changes.13

“Constitutional Law” refers to the process of interpreting and applying the Constitution and its
guiding principles. It serves as the foundation for people’s access to certain basic rights,
including the rights to life, privacy, freedom of movement, and the right to vote. It outlines the
formal requirements that must be satisfied before a governing body may interfere with a
person’s rights, liberty, or property. Constitutional law also addresses issues like judicial
review, basic obligations, and legislative authority, among other things. The Supreme Court of
India has been crucial in interpreting the Constitution and the language employed within it and
as a result, has made significant contributions to the study of constitutional law14

According to Salmond, “Constitutional Law is the body of those legal principles which
determine the Constitution of a State- i.e., the essential and fundamental portions of the State’s
organization.”

13
Constitutional Law, available at: https://in.indeed.com/career-advice/finding-a-job/what-is-constitutional-law
(Visited on April 2, 2023)
14
Prof. Nicholas Sunday, “Constitutional Law, Constitutionalism and Democracy” available at:
https://www.grin.com/document/213984 (Visited on April 2, 2023).

19
5.1. HISTORICAL PERSPECTIVE
The origins of constitutional law can be traced back to ancient Greece and Rome, where
the concept of a higher law – a law that was not subject to change or repeals by ordinary
legislative bodies – began to emerge.

The Greek philosopher Aristotle, for example, spoke of natural law – or the “law of
nature” – which he believed to be a higher law that governed human beings and could be
discerned through reason.

During the Middle Ages, the idea of a higher law continued to develop, with some thinkers
positing that there was a divinely-ordained natural law that was superior to any earthly
laws. This belief gave rise to the concept of “natural rights” – that is, rights inherent in all
human beings and cannot be taken away by any government.

The idea of natural rights was later championed by the English philosopher John Locke,
who argued that every individual has a right to life, liberty, and property. These ideas were
influential in developing constitutional law in England and the United States. In the United
States, the Constitution is supreme, and all other laws must conform to it. The constitution
establishes the framework for the government and sets out certain rights and principles
that the government must respect.

5.2. ELEMENTS OF THE CONSTITUTIONAL LAW

The three main limbs of Constitutional law are the legislative, the executive, and the
judiciary.

The part of the government in charge of enacting laws is the legislature. In most nations,
there are two houses that make up the legislature: the upper house and the lower house.
The lower house is made up of elected representatives of the people, whilst the upper
house is often composed of members of the nobility or the clergy, or the elders.

20
 The branch of government in charge of enforcing laws is the executive. The executive
branch of government, which consists of multiple departments and agencies accountable
for various areas of governance, is often headed by a president or prime minister.

The branch of government tasked with interpreting the law is the judiciary. There are
several courts that make up the judiciary, and they have the authority to hear cases and
issue rulings.

5.3. NATURE AND SCOPE OF CONSTITUTIONAL LAW

Constitutional law is that part of national law which governs the systems of public
administration and the relationship between the individual and the state. It covers all laws
that govern the organization and duties of the major governmental bodies, as well as how
they relate to one another and to the general public. In countries having written
constitutions, emphasis is put on the laws they contain and how the highest court with
constitutional authority has interpreted them.

Constitutional law covers the operation and power of the state’s institutions as well as
relations between people and the government. Since a constitution is a sentient, developing
organism that at any given moment will represent the political and ethical values of the
people it controls, the law of the constitution must thus be understood within the
sociopolitical context in which it operates.

There are both written and unwritten constitutional laws. The ultimate law of the nation is
embodied in written constitutions, such as the Indian Constitution. They are superior to all
laws that are ever in effect in a nation, to the point that any legislation that deviates from
the Constitution would be overturned.

In modern states, constitutional law lays out the foundations of the state. Above all, it
postulates the supremacy of law in the functioning of the state – the rule of law.

21
 Second, it outlines the structure of government, including how each part operates, how
members are chosen or appointed, and how authority is divided among them. The
executive, the legislative, and the judiciary have historically been considered the
fundamental branches of government.
And thirdly, in describing what are basic human rights, which must be protected for every
person, and what further civil and political rights citizens have, it sets the fundamental
borders for what any government must and must not do.

5.4. FUNCTION OF THE CONSTITUTIONAL LAW

The parliamentary system aids in upholding constitutional law. The theory of the
separation of powers between the legislative, executive, and judicial departments of
government is legally included in the Constitution. The court may examine and overturn
executive and legislative actions that it finds to be unconstitutional, despite the legislature
having the ability to wield powers that the judiciary does not. The president, vice president,
and council of ministers are members of the executive branch. It aids in enforcing the
legislation passed by the legislature.

The Supreme Court and the High Courts are included in the superior judiciary, which is
divided by the constitution, while the lower courts are all included in the subordinate
judiciary. All subordinate courts are required to obey any judicial statement made by the
superior judiciary since it is a precedent that all courts must follow. Constitutional law is
crucial because it helps safeguard citizens’ rights and makes sure that the government runs
smoothly and fairly.

The best example of Constitutional Law is the Writs and the protection of Individual
Rights as enshrined in the Constitution of India.

22
 5.5. FUNDAMENTAL PRINCIPLES OF CONSTITUTIONAL LAW
There are several Fundamental principles of Constitutional law. These principles
include;15

5.5.1. Separation of Powers: According to this notion, the legislative, executive, and
judicial parts of the government must be independent and distinct from one another.
The goal of the separation of powers doctrine is to limit the amount of authority that
any one department of government may have.

5.5.2. Checks and Balances: According to this notion, there should be checks and
balances between each component of government. For instance, the president has the
authority to veto legislation that the legislature passes. While the legislature may enact
modifications to the constitution, the judge can deem legislation to be
unconstitutional. The principle of checks and balances is designed to prevent any
branch of government from having too much power.

5.5.3. Judicial Review: According to this concept, the court has the authority to examine
and invalidate legislation that it finds to be against the Constitution. Judicial review
plays a crucial role in limiting the authority of the legislative and the executive and in
ensuring that the government upholds citizens’ rights.

5.5.4. Federalism: The federalist concept is that the national and state governments share
authority. The ability to declare war is one of the many authorities that the federal
government possesses. The state governments have some authority, including the
ability to create schools and regulate trade. The goal of the federalism concept is to
guarantee that the federal government upholds the rights of the people and the states.’

15
Sanjay Rawat, Constitutional Law, available at: https://sociallawstoday.com/what-is-constitutional-law/ (Visited
April 2, 2023).

23
 6. THE CONCEPT OF CONSTITUTIONALISM

The Constitution is a document that contains rules regarding the structure of the government
of a country and the governance of the country. The government is bound to follow the
Constitution during its reign as the ruling power and cannot violate it. The limitations on the
government through these rules and regulations slowly add up to the concept of
Constitutionalism.

Constitutionalism essentially implies that the scope of the government should be constrained
and that its decisions shouldn’t be based on arbitrary criteria. The idea of constitutionalism
promotes the idea that a government should not overrule the highest law of the nation, which
is the Constitution, much as in a democracy the people have the ultimate authority rather than
the governing power. In other words, constitutionalism maintains that constraints should be
spelled out in a nation’s Constitution to guard against citizen freedom and ensure that the
executive branch does not overstep its bounds.

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

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

6.1. LIMITED GOVERNMENT

The idea of limited government is closely tied to constitutionalism. According to the term
constitutionalism discussed above, a country should have provisions in its constitution that
limit the power of the government. This prevents the government from acting arbitrarily
and violating the constitution, which could endanger citizens’ rights and is a common
occurrence under autocracies and military rule. The principle of constitutionalism is used
in practice via limited government. The UK, USA, India, and other nations are examples
of limited governments. In the democratic age, limited government is seen as one of
humanity’s greatest accomplishments. Limiting government does not always imply
stripping it of all of its powers; rather, it means protecting individual rights for a
government with constitutionally granted powers.

24
6.2. HISTORICAL BACKGROUND
Over the years, different lawyers have talked about constitutionalism. It contributed to
history by being developed in phases by numerous prominent philosophers of the time.
Even though they didn’t address it openly, the Greeks and Romans were among the first
peoples in the world to discuss constitutionalism. The renowned Greek philosopher
Aristotle developed the doctrine of separation of powers, which is nowadays considered
to be one of the most crucial components of a democratic government.

The Romans invented the concept of checks and balances. Together with the concept of
checks and balances, the Constitution served as the ultimate law of the nation. The
foundation for the ideas of limited government and constitutionalism was formed in this
area. One of the reasons why the concept of constitutionalism is understood the way it is
now is because the Greeks and Romans were the first to distinguish between the basic law
and the common law of the nation.

The evolution of this idea has been influenced by European philosophers and jurists such
as Ulpian, Gaius, Gratian, Justinian, and Christian leaders like St. Paul, Augustine,
Jerome, etc. There was no concept of limited government in reality at that time because in
fact most regions of the world were under monarchy at that time and it is very much
impossible to convince a king to put restrictions on their own powers, especially in a time
period when kings regarded themselves second to none other than God himself.

The concepts of constitutionalism and democracy have benefited greatly from the
contributions of the British people. One of the first to demonstrate that power was drawn
from the law and hence had to be restricted to the law was Sir Edward Coke, an English
jurist and lawyer.

The American and Indian systems of government have given new dimensions to the
concept of limited government. India and the USA are the two biggest democracies in the
world and their governments and Constitutions are great examples of modern-day
constitutionalism.

25
6.3. FUNDAMENTAL ELEMENTS OF CONSTITUTIONALISM
Constitutionalism is the basic structure on which the governance of a country or state
strictly depends. It is a set of norms that prevents the state from abusing its power. It
protects democratic rights by limiting the misuse of governmental authority and ensuring
effective governance within the nation or state. Its importance cannot be ignored in any
aspect. The fundamental elements that form part of Constitutionalism are;

6.3.1. Sovereignty: It suggests that there is no prejudice on the part of any single authority
towards the government. In other words, it guarantees that the government is run by,
for, and for the people.
6.3.2. Political Democracy: Individual freedoms and equality must be upheld in a
democracy. It says that everyone in the nation has equal rights.
6.3.3. Representative-Limited Government: It states that the people choose the
representatives through a legitimate election process. The public should hold elected
officials responsible for their acts since they are there for the people’s well-being.
6.3.4. Separation of Powers: It separates the three departments of government—the
executive, legislative, and judicial—into three. This makes it easier to maintain
checks and balances in each area independently.
6.3.5. Supremacy of the Constitution and Rule of Law: It implies that the nation is
governed by laws rather than by authority or force. Only the laws and rules that have
previously been proclaimed may determine government.
6.3.6. Civilian Control of the Military Force: It means that the civilian administration
should exercise control over the military in order to prevent the military from
meddling in the nation’s democratic decision-making.
6.3.7. Police & Security Agencies Accountability: It guarantees that the police should
be subject to legal and judicial oversight. Officers have no authority to violate a
person’s dignity.
6.3.8. An Independent Judiciary: The freedom of the democratic authority in India is
guaranteed by the judiciary’s independence. It implies that, if the laws let it, the
government is free to control the nation.

26
6.4. NEGATIVE AND POSITIVE CONSTITUTIONALISM
The theories of Negative and Positive Constitutionalism have emerged based on the
thinkers’ ideology and I have made an attempt to briefly throw some light on these two
concepts as under;
6.4.1. Negative Constitutionalism:
It should be observed that the conventional understanding of constitutionalism is a
negative one, as it is observed by Nick Barber. A concept is interpreted negatively
in law when it inhibits an entity from doing a certain act.

Negative constitutionalism, which calls for a framework in the constitution that

forbids state action, is not necessarily a good idea. Although government action is
necessary to deliver health care and poverty alleviation programs, this conception
of constitutionalism makes it more difficult for the state to do so. As a result, it is
not desirable, particularly in India, a welfare state that also strives for social and
economic justice in addition to political justice. According to Waldren, this
conception of constitutionalism is gravely faulty. He views constitutionalism in
opposition to the egalitarian principle, which, in Waldron’s view, is the foundation
of democracy.

6.4.2. Positive Constitutionalism:

The idea that constitutional law only refers to restrictions on the state is challenged
by positive constitutionalism. Constitutionalism’s benefits necessitate that the State
be seen as a “Welfare State” according to this definition. To assure the welfare of
its population, the positive form of constitutionalism mandates the establishment of
efficient and capable governmental institutions.

According to M.P. Singh, a constitution does not satisfy the condition of

constitutionalism if it fails to accommodate and appreciate societal variety and
plurality. The introduction of this feature of constitutionalism into some earlier
constitutions that had overlooked it has been accomplished by judicial
interpretations, revisions, suitable legislation, and constitutional application.

27
6.5. TRANSFORMATIVE CONSTITUTIONALISM
In general, transformative constitutionalism refers to the use of the law to advance
nonviolently a fundamental social transformation. US Scholar Karl Klare introduced the
phrase “Transformative Constitutionalism” in 1998. He defines Transformative
Constitutionalism as “A long-term project of constitutional enactment, interpretation, and
enforcement committed to transforming a country's political and social institutions and
power relationships in a democratic, participatory, and egalitarian direction.”

A transformative constitution is one that enacts new legislation in lieu of older

legislation in order to bring about drastic change.

India and Transformative Constitutionalism:

There are various components of the Indian Constitution that are frequently said to be
transformational. Hence, we might conclude that transformative constitutionalism sees the
Constitution as a means for bringing about social transformation from an unjust past to a
democratic future.

The Constitution of India on various occasions has been referred to as a dynamic

document. Apart from being the fundamental governing law of the country, it is also
considered to be a social document. In addition to that, the Constitution envisaged
protecting and promoting the essential liberties of minority groups and classes of
individuals who had been systematically and historically disadvantaged and discriminated
against.

A new social and political order founded on democratic principles was intended to replace
and transform India's colonial history throughout the process of creating its constitution.
One of the essential purposes of the Constitution is considered to have a reformatory effect
the society for the better and this objective is the fundamental pillar of transformative
constitutionalism. The Supreme Court of India in Navtej Singh Johar, has undoubtedly
taken a boldly significant step towards a legal system which enforces the incorporations
and egalitarian values of the Constitution of India.

28
6.6. CONSTITUTIONALISM IN INDIA
In the Indian context, various Constitutional provisions in itself, inter-alia contain the
philosophy of Constitutionalism. India incorporates the fundamental elements of the
concept of Constitutionalism as under;

6.6.1. A State by the Constitution: The Indian Constitution has led to the creation of the
Indian State. In addition to outlining the characteristics and organizational framework
of the Indian State, the Indian Constitution also grants citizens certain rights and
privileges.
6.6.2. Article 21 & Due Process of Law: According to Article 21 of the Indian
Constitution, only a legal process may take away someone’s life or liberty. This
implies that a person’s life and freedom cannot be taken away without a valid legal
reason. These requirements of Law and Due process restrict the power of the state.
Any violation of these principles would enable the courts to strike down the law.
6.6.3. Fundamental Rights: The most fundamental defense against the state’s arbitrary
use of power is provided by fundamental rights. Basic Rights serve as limitations on
the governments, telling them what they cannot do. For the state, they act as negative
covenants.
6.6.4. Written Constitution: First and foremost, a written constitution guarantees a
limited government, which is the foundation of constitutionalism. The Indian State is
therefore governed and constrained by the written, codified, and recognized Indian
Constitution as the ultimate law of the nation. Limited in that it is constrained by the
mandate and bounds of the Indian Constitution.
6.6.5. Separation of Powers: Separation of powers refers to the division of the state’s
authority among the President, the Legislative, and the Judiciary, the three main
branches of the government. The system provides a check on each organ’s authority,
preventing it from acting arbitrarily and unreasonable without appropriate
consideration for due process. Each organ is constrained to operate beyond its
boundaries.

29
 6.7. JUDICIAL ANALYSIS OF CONSTITUTIONALISM
Over the period of time, there are various interpretations by the Judiciary with reference
to the concept of Constitutionalism. At times the Judiciary has acted very cautiously in
interpreting the Constitution of India and the nature of Constitutionalism meeting to the
Indian standards. Some of the landmark decisions are as under;

6.7.1. I.R.Coelho Vs. State of Tamil Nadu16

The Hon’ble Supreme Court observed that, the Constitution is a living document.
The constitutional provisions have to be construed having regard to the march of
time and the development of law. It is, therefore, necessary that while construing
the doctrine of basic structure due regard be had to various decisions which led to
the expansion and development of the law.

The principle of constitutionalism is now a legal principle that 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.

Court described Common Law constitutionalism in precise manner which may

reveal our vehement exigencies. The protection of fundamental constitutional rights
through the common law is main feature of common law constitutionalism.

16
AIR 1999 SC 3197

30
 6.7.2. Rameshwar Prasad and Ors. Vs. Union of India17
Constitutionalism, or the constitutional system of government, abhors absolutism;
it is based on the Rule of Law, in which subjective gratification is replaced by
objectivity provided by the Constitution’s provisions.

Constitutionalism is about restrictions and goals. Judge Brennan asserts that the
ambitions and guiding principles are what matter most when interpreting the
Constitution as a written document. Herman Belz claims in his article titled
“Challenge to the Living Constitution” that the Constitution represents the ideals
of social justice, fraternity, and human dignity. It is a text that is composed of core
ideas. A judge’s ability to make decisions was not constrained by adherence to the
text as essential principles. It is feasible to apply ideas and beliefs that are not
recoverable under the notion of the unwritten living constitution thanks to the
legacy of written constitutionalism.

6.7.3. Swaran Singh v. State of U. P18

The Court said that the proper use of public power, including constitutional
authority, must never be done so arbitrarily or maliciously, and that generally
speaking, rules for fair and equitable execution serve as assurances of legal power
use. The greatest moment’s power cannot be a rule unto itself; instead, it must be
guided by the more refined principles of constitutionalism.

6.7.4. State (NCT of Delhi) v. Union of India19

The court observed that “The essence of constitutionalism is the control of power
by its distribution among several state organs or offices in such a way that they are
each subjected to reciprocal controls and forced to cooperate in formulating the will
of the state.”

17
(2006) 2 SCC 1
18
(1998) 4 SCC 75
19
(2018) 8 SCC 501

31
 6.7.5. S.R. Chaudhuri v. State of Punjab20
The Supreme Court said that “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 organization.”

6.7.6. R.C. Poudyal v. Union of India21

The Court again observed that “Constitutionalism or a constitutional culture are not
guaranteed by the mere presence of the Constitution. A Constitution would
otherwise be nothing more than an embodiment of political ambitions and goals; it
is the political maturity and traditions of the people that give it significance. For
constitutionalism, a constitution must include certain characteristics that would
either prevent the government from acting against its people or oblige it to act to
ensure that every one of them lives in dignity.

6.7.7. Navtej Singh Johar V. Union Of India22

This is a landmark judgment leading to the Transformative Constitutionalism. The
court determined that Indians who identify as LGBT are entitled to all constitutional
rights, including the freedoms guaranteed by the Indian Constitution. It said that
“the constitutional protection of sexual orientation is inherent to the freedom to
choose one's partners, the capacity to have fulfilling sexual intimacy, and the right
not to be exposed to discriminatory behavior.”

6.7.8. Justice K.S.Puttaswamy v. Union of India23

In this case a nine-judge bench of the Apex Court held that privacy is indeed a
fundamental right under the purview of Article 21 of the Indian Constitution. Even
after the proclamation of emergency or by suspension order of the President, the
fundamental right to life under Article 21 cannot be suspended.

20
(2001) 7 SCC 126
21
1993 AIR 1804
22
(2018) 1 SCC 791
23
(2017) 10 SCC 1

32
7. CONCLUSION

India, the homeland of Unity in Diversity is the architect of the Modern Democratic values in
the world. The Constitution is a legal document having a special legal sanctity, which sets out
the framework and the principal functions of the organs of the government of a state, and
declares the principles governing the operation of those organs.

The rule that governs the organization of the major governmental bodies, how they interact
with one another, and what their primary responsibilities are is known as the Constitutional
Law. The regulations are divided into two categories: laws passed by the government or
regarded as being enforceable by all parties involved.

In order to prohibit the exercise of arbitrary decision-making, Constitutionalism, in a nutshell,

is the precise constraint on broad governmental powers. The exercise of unchecked power
concentrated in a small number of hands at the helm of affairs would endanger peoples'
freedom. In a system where it will be difficult for tyrants to get to power, these powers must
be curbed and balanced by equally strong alternatives. Constitutionalism, which is meant to be
reflected in the Constitutional Law of a democratic state, may be summed up as "Limited
Government."

The constitution is strengthened by people in the same manner as people are strengthened by
it. No matter how well-written or comprehensive a Constitution is, the authors of the Indian
Constitution knew that it would be useless unless it is put into practise and lived by the right
people. It is the clearest illustration of India's democratic status, hence adherence to and respect
for the Constitution are crucial for preserving democracy.

Finally, to conclude with, I quote as under;

Constitution of India is the Constitutional Law incorporating the

Constitutionalism.

33
 BIBLIOGRAPHY

TEXTBOOKS
1. Basu, Durga Das. Introduction To The Constitution Of India. 20th ed., Lexis Nexis, 2008.
2. Jain, M. P. Constitutional Law. 6th ed., LexisNexis, 2013.
3. Laxmikanth, M. Indian Polity for Civil Services Examinations. Tata Mcgraw Hill
Education Private Limited, 2011.
4. Kashyap, Subhash C. Our Political System. 1st ed., National Book Trust.
5. Raj, Vivek S. Indian Political System. 7th ed., Civil Services Times.

JOURNAL ARTICLES:
1. Sunday, Prof. Nicholas. Constitutional Law, Constitutionalism and Democracy. GRIN
Verlag, Munich, 2013, https://www.grin.com/document/213984.
2. Kumar, Anuj. “Law and Justice: Public Law.” Legal Desire, June 2016, p. 120.
3. Stone, Adrienne, and Lael K. Weis. “Positive and Negative Constitutionalism and the
Limits of Universalism: A Review Essay .” Oxford Journal of Legal Studies, 2021,
https://ssrn.com/abstract=3809334 or http://dx.doi.org/10.2139/ssrn.3809334.

WEBSITES
1. https://www.india.gov.in/my-government/constitution-india
2. https://legaldesire.com/law-and-justice-public-law/#_ftn1
3. https://www.britannica.com/topic/Regulating-Act
4. https://blog.ipleaders.in/history-and-development-of-the-constitution-of-india/
5. https://www.studyiq.com/articles/constitution-of-india/
6. https://in.indeed.com/career-advice/finding-a-job/what-is-constitutional-law
7. https://sociallawstoday.com/what-is-constitutional-law/

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