What is constitutionalism?
Constitutionalism means having a limited government i.e government whose power is not unlimited, unrestricted and the acts were not arbitrary.
Unlimited government concentrates the power in few hands and there is no one to prevent the state from misusing its powers, encroach upon the rights of people.
Why constitutionalism is important?
Answer: State can be very powerful without constitutionalism and without constitutionalism state cannot be forced to work upon some fixed rules.
Examples of countries where there is a constitution, but there is an absence of constitutionalism.
China, North Korea, Zimbabwe, Libya, etc.
In all of the above countries, the government has maximum powers and they can exercise their powers as they want.
Therefore, constitutionalism is very important to ensure that powers that are in the hands of the state should not be exercised arbitrarily.
NOTE – Explanation is for understanding only.
Constitutionalism is a kind of vision that how a country’s government should act and work on the basis of its constitution.
Just having a constitution is not enough to support constitutionalism. We need to have some provisions as well.
Now let us dive into the provisions which ensure constitutionalism.
What are the provisions that ensure constitutionalism?
Some of the provisions that ensures constitutionalism are:
- Democratic formed constitution.
- Separation of Powers.
- Checks and balances.
- Rule of Law.
- Active and responsible media.
- Independence of Judiciary.
- Judicial Review is a part of Constitutionalism.
- Fundamental Rights.
- Strong Civil Society supports constitutionalism.
1. Democratically Formed Constitution
It means a constitution formed in accordance with the principles of democracy.
It is very important to ensure constitutionalism.
2. Separation of Powers
In India, the powers are separated among Legislators, Executives, and Judiciary which are three wings of the government.
This was done in order to prevent the state from being oppressive and safeguarding individual liberty.
How powers are separated?
Powers are separated among:
Why Powers are separated among them?
Powers are separated in order to ensure that the government should not encroach on the rights of the citizens.
Let us understand with the help of examples:
Example when Judiciary can stop the legislature:
Suppose the government passed a law in which people are supposed to share 3 months of their data from social sites (such as WhatsApp, Facebook, etc) with the government for security purposes.
The result will be:
Some people will fight against this law on grounds of the Right to Privacy and in the end, Judiciary can declare the law void and unconstitutional.
The law can be declared unconstitutional because it is against the privacy of people.
Example when Legislators can stop executives:
Take the ARMED FORCES SPECIAL POWER ACT (AFSPA).
Under AFSPA officers can arrest anyone.
They even have an order to shoot someone under suspicion and also the inquiry against officers cannot happen in a normal way.
Not always, but many times AFSPA is misused by the officers.
In certain cases, Legislators can punish them.
Example of Legislators exercise power over Judiciary:
We know that Judiciary is integrated and independent in India but only the Parliament can remove any judge from his/her office, this is because of the checks and balances in India.
You can read about how Judges can be removed in India in this linked article:
Can executives have powers over Judiciary?
Not absolutely, but President has some say in the appointment of the Chief Justice of India & other Judges in the Supreme Court under clause (2) of Article 124 of the constitution.
So we can say that the executive has some influence over Judiciary.
NOTE: The explanation is for understanding only
3. Checks and Balances
4. Rule of Law
This concept came from England has been made part of the Right to Equality.
Rule of Law means “Law Is Supreme” i.e Lex Supremus and absolute supremacy of the law against the arbitrary powers.
What are Arbitrary powers?
Powers that are unrestricted and have no logic.
For example: punishing someone without reason is against the right to equality.
Only the adoption of the Rule of Law has changed the concept of Rex Lex (King is Law) to Lex Rex (Law is King) which is very much essential for the right to equality & stability of India.
Lex is Rex- Law is King (Now)
Rex is Lex- King is Law (In Past)
Constitution under Article 32 and Article 226 empowers Supreme Court and High Court to enforce the Rule of Law against executives and legislators.
Rule of Law is a part of the basic structure of the Constitution in India and also a part of the right to equality.
Three principles of Rule of law:
- No man shall be punished or made to suffer except for violation of Law and such violation should have been established in an Ordinary court of Law.
- All persons are subjected to Ordinary Law of land without any distinction i.e all can sue or get sued before the court.
Can sue or get sued: means anyone can start legal proceedings against someone and also vice-versa.
- It says that all the laws passed by the legislature must be consistent with the provisions of the constitution.
Exceptions for rule of law: President, Governor, Member of Parliament (M.P), etc.
5. Active and Responsible Media
Media is considered an important pillar of democracy.
Therefore, the media should be responsible and active otherwise it will be havoc.
6. Independence of Judiciary
The duty of judges is considered to be challenging.
Therefore the constitution has provided for the independence of the Judiciary so that they can remain impartial to serve the constitutional goals, act fairly, reasonably, free of any fear or favor.
7. Judicial Review is a Part of Constitutionalism.
What is Judicial Review?
Judicial Review in India means the power of the Supreme Court and High court to declare a law unconstitutional and void if it violates one or more provisions of the constitution.
The word “Judiciary Review” (JR) is nowhere mentioned explicitly in the constitution.
How Judicial Review is helpful?
For Example: If any administration is doing something which is unwise and unconstitutional, then the state can prevent such a thing from happening.
Similarly, if the state has done something unwise & unconstitutional then the judiciary can approve/disapprove the work of the state with the help of Judicial Review.
NOTE – Explanation is for understanding only.
To read more about Judicial Review. Click this linked Article related to Judicial Review.
8. Fundamental Rights
what are fundamental rights in India?
Fundamental rights in India are the cornerstone of Indian Democracy and are called fundamental rights because, without these rights, any other right will have no reason.
Also, they are fundamental in allowing individuals to achieve their full physical, intellectual, spiritual stature and thus establishes a full democracy.
The State cannot take away them and any law threatening them can be declared null and void. It prevents the State from being Authoritarian.
To Read more about Fundamental Rights. Click this linked Article Related to Fundamental Rights.
9. Strong Civil Society supports Constitutionalism.
Why we need a strong civil society?
Civil society is also an important pillar of democracy. Stronger the civil society, the stronger the public opinion will be.
What is the major difference between India and Pakistan?
The public opinion in India is stronger as compared to Pakistan. Let us understand it with the help of an example:
There was the Rimsha Masih blasphemy case in 2012-13 in Pakistan when a 14-year-old girl was arrested for allegedly burning pages from the Quran.
The girl was believed that she was not mentally strong and has some Down syndrome.
She was not only put in jail but in solitary confinement. She was not released initially, even with the international pressure is upon Pakistan.
If the same thing would have happened in India, the girl would have been released much earlier because public opinion is stronger in India.
NOTE – Explanation is for understanding only.
What is the function of the Constitution?
- Explains the ideology and philosophy of the nation-state.
- It validates all other laws in this country.
- Provides the organizational framework of government (its composition).
- It itself gives the Procedure to amend itself.
Frequently Asked Questions (FAQ)
What is the basic structure of the constitution?
The basic structure of the constitution are those parts and features of the constitution without which the constitution loses its character.
The Supreme Court did not define exhaustively (completely) the basic structure of the constitution but in various judgments, we keep knowing them.
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