A RESEARCH PROJECT

ON

CONSTITUTIONALISM: NATIONAL &

INTERNATIONAL PERSPECTIVE
(Subject: Comparative Constitutional Law)

Submitted to:
Assistant M.P Chengappa

Professor of Law (Comparative Constitutional Law)

West Bengal National University of Juridical Sciences

Kolkata

Submitted by:
SUBHAPRAD MOHANTY

LLM. ID: PG-21506

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 TABLE OF CONTENTS

CHAPTER I. INTRODUCTION ............................................................................................................ 3

a). Aim of the Paper ............................................................................................................................ 5

b). Research Problem .......................................................................................................................... 5

c). Hypothesis ..................................................................................................................................... 5

d). Research Methodology .................................................................................................................. 5

e) Literature Review ........................................................................................................................... 6

CHAPTER II: CONCEPT & MEANING .............................................................................................. 8

CHAPTER III: INTERNATIONAL PERSPECTIVE .......................................................................... 10

CHAPTER IV: CONSTITUTIONALISM IN INDIAN CONTEXT ................................................... 12

CHAPTER V: CONCLUSION............................................................................................................. 14

BIBLIOGRAPHY ................................................................................................................................. 15

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 CHAPTER I. INTRODUCTION

“Constitutionalism is the name given to the trust which men repose in the power of words
engrossed on parchment to keep a government in order”

-Walton Hamilton1

The above lines clearly distinguish the line between Constitution and Constitutionalism.
While constitution lays down structure and functions of various organs of the government
constitutionalism is a form of political philosophy which advocates limited form of
government. In a broader sense constitutionalism denotes the principle and practice under
which a community is governed by a constitution. The principle of constitutionalism denotes
that any form of arbitrary power remains checked. The birth of constitutionalism is a modern
phenomenon but its origin can be traced to ancient times.

Plato, an ancient Greek philosopher, believed in the importance of knowledge and its utmost
importance in leading a good life. He believed that power should be vested with those who
are endowed with knowledge. In other words, philosophers should be rulers. 2 However
Plato’s suggestion was disproved by his own disciple Aristotle who believed that all normal
forms of government (monarchy, aristocracy, and polity) were bound to degenerate (tyranny,
oligarchy and democracy respectively) in due course because power and virtue could not co-
exist.

The birth of modern constitutionalism can be attributed to great philosophers John Locke and
Charles de Montesquieu. Locke compared government akin to a trust set up by individuals as
opposed to any form of natural or divine ordained entity for protection of personal life, liberty
or property. Montesquieu gave the principle of separation of powers to categorize different
organs of the Government and delineate their corresponding functions. Montesquieu took cue
from constitutional practices of then England which adequate safety of civil liberties albeit it

1
See Louis Henkin, Introduction: The United States Constitution Abroad, in Constitutionalism And Rights.
2
See Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L. REV.
771, 772 (1997)

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was an unwritten constitution3. However, the written constitution of the world is American
Constitution (1787) incorporated elements of Locke and Montesquieu.

Though India is relatively a new country in adoption of a written constitution the essence of
constitutionalism is deeply embedded in the ethos of constitutional principles.4 Our
constitution which has borrowed elements from different constitution of the world has
somewhat consolidated the elements of constitutionalism through the passage of time. The
available checks and balances in the constitution have now metamorphosed with judiciary
playing a pivotal role in keeping the government in check. The judiciary over the years with
the help of interpretative theories like basic structure doctrine and extra judicial mechanism
like Public Interest litigation has expanded the scope of constitutionalism in India. Many
varied reasons like even handedness of legislature during emergency days, failure of
legislature to provide socio-economic rights to poor and disenfranchised populace, human
rights abuses amongst others led to imbalance which judiciary stepping in to put restrain on
the government.

During the framing of constitution Dr. B.R. Ambedkar, the principle architect of constitution,
quoted “I feel, however good a Constitution may be, it is sure to turn out bad because those
who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may
turn out to be good if those who are called to work it, happen to be a good lot. The working
of a Constitution does not depend wholly upon the nature of the Constitution.”5 Ambedkar
prophetic words also revived the spirit of constitutionalism as judiciary now stepped in to
carry out functions of legislature. Strictly speaking, there is no provision for separation of
powers in Indian Constitution. But still functions of different organs of the government are
explicitly outlined with appropriate checks and balances. But does such intrusion by Judiciary
into the domain of legislature negate the very principles of constitutionalism which clearly
defines role of different organs of the government? The answer is in negative.
Constitutionalism also advocates a limited form of government with appropriate checks and

3
Id.
4
India gained independence from British rule on August 15, 1947. See Sharad D. Abhyankar, India, in Vii
Constitutions of the Countries of the World.
5
Referring to the apprehensions expressed by the Constituent Assembly members on the removal of "due
process," from Article 15 of the draft constitution, Dr. B.R. Ambedkar observed: "'We are therefore, now, by
introducing Article 15A, (Article 22 of the Constitution) making, if I may say so, compensation for what was
done then in passing Article 15. In other words, we are providing for the substance of the law of "due process"
by the introduction of Article I5A." IL (citing IX Constituent Assembly Debates 1497).

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balances. The presumption can be drawn the required tools to check arbitrariness in
constitution failed to work.

a). Aim of the Paper

The paper tries critically analysing the precepts of constitutionalism in the Indian context and
how contemporary development in the field of constitutional law in India has ramifications
over the principles that are followed in this country. The practice of constitutionalism
followed in United Kingdom and United States of America is also briefly discussed in this
paper.

b). Research Problem

The paper also will deliberate upon the question whether there is a gradual erosion of
constitutionalism in India. The Fundamental Rights case gave the Basic Structure doctrine
vis-à-vis through judicial interpretation. But the emergence of derived basic structure
principles as illustrated in the recent fourth judges case might the stretch the arc of
constitutionalism to disproportionate measures. Similarly, PIL movement in India has
checked arbitrariness of State excesses but it has also encroached the domain of legislature.

c). Hypothesis

Constitutionalism principles in India lacks a proper shape and are in complete disarray due to
too many borrowed elements from different constitution of the world. Moreover the principle
of constitutionalism is conflicting with the principles of separation of powers.

d). Research Methodology

The author of the paper has followed a conventional doctrinal research and has also
undertaken comparative research of UK and USA constitutions. The paper has also discussed

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some of the principles enunciated in cases like Keshavnanda Bharti case,6 I.R Coelho case,7
Rameshwar Prasad Thakur case8, Naz foundation9 and the recent fourth judge case10
illustrates growing problems for interpretation of constitutionalism in future.

e) Literature Review

Jeremy Walden; Constitutionalism: A Sceptical View.

Jeremy Walden has brought out the concept of constitutionalism using logical deduction.
Walden analysed the principle of constitutionalism by studying its practice in different
jurisdictions particularly UK, USA, South Africa and New Zealand. One of the most notable
contributions of Walden analysis is that it explicitly defined features of constitutionalism like
written/unwritten features, models of restraint on government, popular sovereignty etc. The
paper also categorized types of constitutionalism model. But one of the drawbacks of the
paper was the author has stressed too much on the concept of constitutionalism that it has
failed to take account of constitutionalism model followed in Asian countries. The western
model of constitutionalism no doubt is the defining feature but the practice of
constitutionalism in Asian countries should not be overlooked.

Vijayashri Sripati; Toward Fifty Years of Constitutionalism and Fundamental Rights in

India: Looking Back to See Ahead (1950-2000)

The article reflects the Indian constitutional history on the backdrop of constitutionalism
model followed in India. The author also paints a grim picture of growing intolerance due rise
of Hindutva movement in India. Notwithstanding the detailed picture drawn on the paper the
author misses the mark when he failed to explain the meaning of constitutionalism as per the
Indian constitution. The author just gave a fractured narrative retelling the events of
promulgation of constitution and its tumultuous journey during the emergency days. But how
such events has shaped and affected the constitution needs to be succinctly stated.

6
(1973) 4 S.C.C. 225
7
AIR 1999 SC 3197
8
(2006) 2 SCC 1
9
Civil Appeal No. 10972 of 2013 of Supreme Court of India
10
Writ Petition(Civil) No. 13 of 2015 of Supreme Court of India

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Akhil Reed Amar, America’s Constitution, Written and Unwritten

The article explored American Constitutionalism system since its inception. The written and
unwritten features of constitution is explained and its different advantages and disadvantages.
The author has analysed the bill of rights in a detailed manner and stated how overlapping of
rights in ninth and fourteenth amendment might sensibly be interpreted and enforced. Minly
the rights and privileges as guaranteed by the American constitution is discussed on the
backdrop of constitutionalism.

Milan Dalal; India's New Constitutionalism: Two Cases That Have Reshaped Indian Law

The author has taken two cases I.R Coelho, and Raja Ram Pal case to discuss that there is a
taciturn shift in the changing concept of constitutionalism. These case involved review of
legislative and non-legislative functions of the government that showed how the supreme
court of India is undergoing an identical transformation heralding itself as an equal
stakeholder in the power structure of the government.

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 CHAPTER II: CONCEPT & MEANING

The Oxford English Dictionary11 defines constitutionalism in a broader sense to an attitude or

disposition-“adherence to constitutional principles.” A constitutionalist is one who takes
constitution very seriously and who does not stray away from the path of important values
incorporated in the constitution. Constitutionalism therefore refers to the sort of ideology that
makes this attitude seem sensible. But this definition reeks of fundamentalism that might
hinder the growth of constitution in a holistic manner. A constitution is a social organic
document that changes not drastically though in passage of time to subserve the aspirations
and needs of the future generations. A constitution cannot be stuck in a time warp otherwise
it will lose its very purpose. Roger Scruton’s defined the term in Dictionary of Political
Thought12 advocacy of constitutional government. i.e. of “government channelled through
and limited by a constitution.” So a constitution is just a bulwark to a tyrant march to impose
absolutism. This same principle was reiterated in Andras Sajo’s book Limiting Government:
A Introduction to Constitutionalism13. In a forward to Sajo’s book, Stephen Homes writes
that that “constitutions are giant restraining orders motivated by a passion for avoidance.
They are inevitably propelled by the desire to escape specific dangerous and unpleasant
political outcomes.”

The evolution of modern constitutionalism can be traced if we go through the works of three
scholars C.H. McIlwain (Constitutionalism and the Changing World published in 1939),14
Carl J.Freidrich (Constitutions and Constitutionalism) and Karl Loewenstein(Constitutions,
Constitutional Law). According to McIlwain, “A constitutional government and must be
limited government if it is constitutional at all.”15 So basically the form of government
doesn’t matter at all. Taking the argument further it can be presumed that constitutionalism
exist in dictatorship countries also. McIlwain propounded the theory during the backdrop of
rising fascism which shaped his views regarding constitutionalism in an orthodox manner. He
was of further opinion that a free market economy could only provide conducive environment
for proper growth of constitutionalism. Carl J. Freidrich, on other hand, severely criticised
McIlwain model as such model lacks elements necessary for constitutionalism to thrive.

11
See Oxford English Dictionary online, op. cit.
12
See Roger Scruton, A Dictionary of Political Thought (London: Macmillan 1982), p.94.
13
See Andras Sajo, Limiting Government: An Introduction to Constitutionalism (Budapest: Central European
Press, 1999)
14
See C.H McIlwain, Constitutionalism Ancient and Modern (Ithaca: Cornell University Press, 1940), p.24.
15
Ibid

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McIlwain failed to discern the difference between constitutional and non-constitutional
model. Further, only organization of government is no sufficient as a prerequisite for
constitutionalism. Freidrich proposed his constitutionalism model based on two parameters:

a) The life, liberty and property of individual should be protected. The personal sphere of
individuals should be protected against personal sphere. He cited the example of Bill of
Rights to further its argument.

b) There should be application of separation of powers with federalism as it main feature.

Constitutionalism implies, according to Freidrich, the practice of politics according to ‘rules

of the game’ which ensure effective restraints upon governmental and other political action,
and the theory-explanatory as well as justificatory-of this practice.

Karl Lowenstein morphological theory of constitutionalism16 gave the skeletal outlook of

constitutionalism model. According to him, the formal institution in the accepted
contemporary sense establishes the political agencies-organs; power-holders of a state
community and the institutions and techniques by which they are expected to conduct the
political process, regulates the mutual relations of the power-holders or state organs,
particularly their co-operation in formulating the will of the state(frame of government). In
addition, the contemporary constitution regulates the mutual relations between the public
authorities and the citizens and among the citizens themselves; this section of civil liberties is
usually spoken of the bill of rights.

The aforementioned three model of constitutionalism has no doubt shaped the future of
constitutions around the world.

16
See Akhil Reed Amar, America’s Constitution, Written and Unwritten, 57 Syracuse L.Rev.267 (2007) at 269.

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 CHAPTER III: INTERNATIONAL PERSPECTIVE

The concept of constitutionalism both differed in United States of America and United
Kingdom albeit to a lesser extent. While USA follows the model of judicially enforced
limitations on legislative authority the UK followed the Westminster model which is based
on parliamentary sovereignty. The practice has differed over the years but initially there was
a common ground over which both the models shared similar features. 17 Despite the
differences between English and American constitutionalism, the concept of
constitutionalism in both countries celebrate and advocate forms of political structuring that
limits the power of government in various ways. Many of the forms are similar (like
federalism); while some of them are different (like the more extensive provision for judicial
review of legislation in the United States).

UK does not have a written constitution. There is no single canonical document that defines
the constitution of UK. Legislations like the Bill of Rights of 1689, the Act of Union of 1707,
the European Communities Act of 1971, The Human Rights Act of 1998 and the various
Representation of the people Acts from 1918 to 2000. The unwritten feature of UK
constitution is subject to intense debate and deliberations. It is generally argued that
individual rights and rules restraining government are insecure unless they are laid down in
the terms of a written constitution. It will be useful to recall the Walton Hamilton ironic
definition: “Constitutionalism is the name given to the trust which men repose in the power
of words engrossed on parchment to keep a government in order.” Here it will be useful to
reflect the words of Justice Marshall in Marbury v Madison:18

“All those who have framed written constitutions contemplate them as forming the
fundamental and paramount law of the nation, and consequently the theory of every such
government must be, that an act of the legislature repugnant to the constitution is void. This
theory is essentially attached to a written constitution……”

While UK is still stuck in a time warp the Americans on the other hand believed in the
tangible worthiness of a constitution. The drawback of unwritten aspects of the U.K

17
See Trimbak Krishna Tope, The Constitution of India 37 (1971) (discussing the similarities and differences in
the United States and Indian constitutions).
18
5 U.S. 137 (1803), at 177.

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constitution is that there is a taciturn shift in subject matter and the line between a normative
provision of the constitution in this sense and a normative view about what the provisions of
the constitution ought to be is a subject of constant equivocation. Noted American scholar
Jeremy Walden19 cautions that the written feature of the constitution is heavily swayed by the
interpretation of lawyers, judges and such abstract interpretive debates can sometimes crowd
out serious arguments focused on the merits of the question under discussion, whether it is
abortion, or affirmative action or campaign finance reform.

19
See Jeremy Walden, Constitutionalism: A Sceptical View. Georgetown University Law Center(2010)

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 CHAPTER IV: CONSTITUTIONALISM IN INDIAN CONTEXT

In I.R.Coelho(Dead)LRs vs.State Of Tamil Nadu and Ors20 the Supreme Court reiterated 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. 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.21 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.

Even though we have important check and balances to keep the government in a limited form
there has been gradual introduction of new elements to keep the excessive power of the
government at abeyance. Two of the elements are introduction of Public Interest Litigation
(“hereinafter,”PIL) and the basic structure doctrine. PIL movement started in the aftermath
of emergency days when there was curtailment of civil liberties and excessive arbitrary
decisions were introduced.22 The PIL enabled ordinary citizens to question any laws, rules,
bye-laws or policies of the government which found to be arbitrary. The success of PIL has
no doubt helped to keep the power of the government in check but its misuse vis-à-vis
frivolous PILs.

The fundamental rights case in 1973 gave birth to a new theory called the Basic structure
doctrine. The basic structure doctrine encapsulates all the features of a constitution which
cannot be amended. Parliament can amend the constitution but that amendment has to
withstand the basic structure doctrine test. Following the enunciation of basic structure which
consisted of limited number of features there has been addition of new elements in

20
AIR 1999 SC 3197
21
See Milan Dala Two New Cases that Have Reshaped Indian Law, 31.B.C.INT’L & COMP L.REV. 257, 257 (2008).
22
See Worst Legacy of Emergency Persists, HINDU, June 24, 1998 (discussing Indira Gandhi's nineteen-month
Emergency as the period when India "ceased to be a democracy")

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subsequent cases. Of recently, in the fourth judges transfer case the bench reiterated the
primacy of judiciary as part of the basic structure doctrine which was introduced in the
second judges transfer case. Many new elements introduced in the basic structure doctrine for
part of the derived basic structure as noted by senior advocate Raju Ramachandran.

Both the PIL and basic structure doctrine though not doubts are exemplary features of judicial
craftsmanship but its misuse has been stretched to limit the powers of the government. There
has been intense debate and deliberations in the recent past whether such extra constitutional
mechanism is needed to keep a check on arbitrary powers of the government. It is not
necessary that appropriate check and balances should be only found in the constitution. As
mentioned earlier that constitution is a living document its organic growth should not be
stalled for want of limited measures. It is on the prerogative of lawmakers to insert elements
into constitutionalism for its execution in both letter and spirit of law.

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 CHAPTER V: CONCLUSION

The backdrop in which the constitutionalism is discussed provides us a vision to see the
contemporary perspective, in which we find that there are very detailed description of powers
of organs of government so that they can exercise their powers within the boundaries of
constitution i.e. Higher law in India, owing to which governmental organs become unable to
entertain arbitrary powers and also these provisions provide a paramount place to laws whose
main aim is to protect the interest of individuals in the country. The concept of
constitutionalism is deeply entrenched in the Indian legal soil but its practice in the recent
years has been faltering. The recent intolerant debate that has been raging in the country is
simply antithesis to the principles of constitutionalism. As we law students we can so far
promote the value of constitutionalism right from the ground level. Legal activism is one of
the best ways to inculcate the value of constitutionalism. Voices need to be raised against any
form of injustice. Judges are to promote the value of constitutionalism emanating from a legal
draft, drafted by constituent assembly constituted of representatives expressing their public
opinion. Although, Secondary public opinion cannot overrule primary public opinion, but
every provision has its own importance and if any provision is not explicitly present in a
constitution but its reflection is found in some clauses, then it will be sufficient to promote
the spirit of constitutionalism.

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 BIBLIOGRAPHY

1. Bruce Ackerman, The Rise of World Constitutionalim, 83 VA. L. REV. 771, 772 (1997)

2. Sharad D. Abhyankar, India, in VII CONSTITUTIONS OF THE COUNTRIES OF THE

WORLD.

3. Louis Henkin, Introduction: The United States Constitution Abroad, in Constitutionalism

And Rights

4. Roger Scruton, A Dictionary of Political Thought (London: Macmillan 1982).

5. Andras Sajo, Limiting Government: An Introduction to Constitutionalism (Budapest:

Central European Press, 1999)

6. C.H McIlwain, Consitutionalism Ancient and Modern (Ithaca: Cornell University Press,
1940).
7.Akhil Reed Amar, America’s Constitution, Written and Unwritten, 57 Syracuse L.Rev

8. Trimbak Krishna Tope, The Constitution of India 37 (1971)

9. Jeremy Walden, Constitutionalism: A Sceptical View. Georgetown University Law

Center(2010)
,

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