Introduction To Concepts - Constitution, Constitutional Law And Constitutionalism

This Article is Written by Abhishek Narayan Mishra.

INTRODUCTION

A state cannot govern itself on an ad-hoc basis without there being some norms to regulate it’s basic institution. Governmental organs must draw their power and functions from a predictable body of norms and rules. The purpose of having a constitution is to have a framework of government which is likely to endure through vicissitudes of a person. Now, let’s discuss what exactly is constitution of country ?

CONSTITUTION OF COUNTRY

The constitution of a country is a document that has its own legal sanctity; it could be any written or unwritten. The Constitution seeks to establish the fundamental, basic, or apex organs of government and administration. It describes their structure, composition, powers, and principal functions, defines the inter-relationship of these organs with one another, and regulates their relationship with the people, particularly the political relationship.

In general, the constitution is also known as ‘ supreme law of land ’.

CONSTITUTION IS BASED ON

The constitution of every country has certain special features because the historical background, social, economic and political conditions influence making of the constitution.

These factors have all contributed to the making of the Constitution of India. The constitution was adopted by the constituent assembly on 26^th November, 1949 and came into effect on 26^th January, 1950.

NEED FOR A CONSTITUTION

There are following factors which are follow as :-

It generates trust that is necessary for different kinds of people to live together.
It specifies how the government will be constituted which means who will have the power and what decisions will they be responsible for.
It limits the power of the government and makes citizens aware of their rights.
It expresses the aspirations of people for building a good society .
It define the nature of political system of a country .
It provides a set of rules that allows minimal coordination among members of society.
It enable the government to fulfill the separation of a society and create conditions for just society.

ASPECTS OF THE INDIAN CONSTITUTION

The Constitution of India has distinct and unique features compared to other constitutions in the world. Dr. Ambedkar, the chairman of the Drafting Committee, noted that the framers tried to incorporate the best features of other constitutions while considering the peculiar problems and needs of our country.

The main characteristics are :-

Longest written constitution.
Partly rigid and flexible.
Democratic Republic.
Parliamentary system of government.
A federation
Fundamental Rights.
Directive Principles of State Policy.
Secular state.
An independent judiciary.
Single citizenship.

Now, the question arises what exactly is constitutional law ?

CONSTITUTIONAL LAW

The term ‘ constitutional law ’ is much extensive in nature with its concept than the term ‘ constitution ’. Constitutional law mainly includes the constitution, judicial precedents, relevant statutory laws, and conventions. It comprises both ‘legal’ and ‘non-legal’ norms. ‘Legal’ norms are those that can be enforced by the courts if violated, whereas ‘non-legal’ norms arise over time from practices followed repeatedly for years.

Beyond the concept of the constitution, there is the important idea of constitutionalism. A country may have a constitution but not necessarily constitutionalism. For example, in a country where a dictator’s word is law, there may be a constitution, but not constitutionalism.

CONSTITUTIONALISM

The concept of constitutionalism is not new, it is some where deeply embedded in human thoughts, the Magna Carta ( 1215 ) has always strengthened and promoted the traditional view that ‘ law is supreme ’. Some natural law philosophers like Hobbes, Locke, Aquinas, Grotius, and Rousseau have promoted the idea of having certain limits on the powers of the king in their theories, such as the ‘social contract’.^[1]

According to Giovani Sartori, argued that constitutionalism is all about stopping the government from acting like a bully. It means the government has to follow the rules, just like everyone else.

Similarly according to McIlwain, constitutionalism means “legal limitation on government. It is the antithesis of arbitrary rule. Its opposite is a despotic government, the government of will instead of the law”.^[2]

In essence, constitutionalism is the idea that the law should limit the power of government. According to Lord Acton,“ All power tends to corrupt and absolute power corrupts absolutely ”. The government must be limited by law to safeguard basic rights like freedom, personal liberty, and dignity.

Constitutionalism acknowledges that the government needs power to manage society, but it insists on checks and balances to keep those powers in line.

It visualizer balanced governance where the powers of executive and legislature are under some limitations; else, it would jeopardize the freedom and opportunity of individuals and lead to a tyrant, oppressive and authoritative government.

Constitutionalism is an antithesis to arbitrary powers. ‘ constitution spring from belief in limited government’. Schwartz explains that a constitution is like a rulebook for the government. It spells out what the government can and can’t do, giving it the power to act but also setting limits.^[3]

It must be noted that a constitution is no guarantee for constitutionalism, In R.C. Poudyal v. Union of India^[4] court observed that,

‘Having a constitution isn’t enough to guarantee a society that follows its principles. It’s the political awareness and traditions of the people that make a constitution come alive. Otherwise, it’s just a document with good intentions.’.

ELEMENTS OF CONSTITUTIONALISM

There are following elements of constitutionalism which given as :-

Written constitution
Independence judiciary
Judicial review
Rule of law
Separation of powers
Free and fair election
Responsible Government
Fundamental rights
Federalism
Decentralisation of powers or more .

ASPECTS

There are following aspects of constitutionalism which are as follows:-

Respect for law
International of values
Controls over discretionary powers
Responsible Government
Entrenchment of constitutional values
Independent judiciary
Free and fair election.

NEGATIVE OR POSITIVE SIDES OF CONSTITUTIONALISM:

It is to be noted that the traditional idea of constitutionalism is a negative notion of constitutionalism, Nick Barber calls it “ negative constitutionalism ”.

NEGATIVE SIDE: In law, a negative understanding of an idea means when it prevents an entity from doing a certain act.

The traditional understanding of constitutionalism fails to explain the positive role that states play. The common understanding of constitutionalism is negative in nature because it consider constitutionalism as only restricting and limiting the power of the state.

POSITIVE SIDE: Constitutionalism isn’t just about limiting government power. It also has a positive side! This positive view sees the government as a tool to help people. It emphasizes building effective institutions that work well and ensure the well-being of all citizens, kind of like a giant support system for everyone in the country.

Professor M.P. Singh believes a true constitution isn’t just about laws, it also needs to respect the different groups and beliefs that make up a society. If a constitution ignores this variety, it doesn’t qualify as real constitutionalism.

CONCLUSION

All the three: constitution, constitutional law and constitutionalism are interrelated with the linked idea of democracy and limited powers. This describes a legal system that protects people’s freedoms and collective rights. It’s all about following the rules (rule of law) so everyone can enjoy their liberties.

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