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Every country has a constitution that gives the ruling government powers to run the country. The term “constitutionalism” means that the government should obey the rules in the constitution, and their activities should be in the spirit of the constitution. 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”. Constitutionalism states that the government is essential to run the country, but the powers given to them should not be absolute, and some restraint must be there to make sure they do not exceed their power. If the government goes beyond its capacity, then it loses its legitimacy and authority.
Positive and Negative Views of Constitutionalism in India
Constitutionalism can be understood in both positive and negative ways:
|Positive Constitutionalism||Negative Constitutionalism|
|This type of constitutionalism objects that constitutionalism should not be seen only through the limitation applied to the state. Positive constitutionalism also promotes that the state should be seen as a welfare state. The state should form a competent and efficient system that makes sure that the welfare of the citizens. It also says that the constitution will not have the elements of constitutionalism if it does not respect the diversification or variation in the population. This concept was not present in the constitution of some countries, and they added this principle through amendments, legislation, and interpretation done by the judiciary.||It means a type of constitutionalism that prohibits an entity from doing something. The meaning of constitutionalism is often inferred negatively as it talks about restricting the powers of the state. If we look at constitutionalism in that way, then we can presume that the state can become a threat to society if not restrained. This restriction of power is not always desirable in the case of health benefits schemes or schemes that aim to eradicate poverty. For India, where the government’s main goal is providing justice, this view of constitutionalism is not the best.|
Principles of Constitutionalism in India
In order to apply the concept of constitutionalism, a particular principle is applied which keeps the government in check and restricts the power of government. These principles include the following
Preamble– It is the most crucial component of constitutionalism. The preamble summarizes the constitution, and it also explains the main goals to be fulfilled by the state. It contains words like liberty, justice, equality, secular, socialist, etc., around which the law should be made. This also ensures that the state will not make laws that are not in consonance with these principles. The preamble gives the rights which the people can enjoy, which is in the spirit of constitutionalism.
Judicial Review– This principle is not expressly mentioned in the Indian Constitution. Although in article 13(2) of the constitution, it is stated that if any laws which are not in consonance with part 3rd of the constitution will be declared null and void. However, it is unclear who will be the authority to check the validity of the law, which is stated to be in contravention of article 13(2). In the case of A.K. Gopalan V State of Madras, the court observed that it is challenging to restrain the legislative power through judicial interference. It can be done under the ambit of articles mentioned in the constitution. However, where there is no express law about judicial review, it becomes difficult to restrain the power of legislation.
Due Process of Law– It means that the state will have to respect all the rights that a person owns. It states that the law is supreme, and no person or institution is above it. The term “procedure established by law” was adopted from the constitution of japan. Under the constitution, article 21 states that the life and liberty of a person cannot be restricted except done by the procedure given under the law. This article restrains the legislation and the executive for doing such acts without any credible reason. The courts also play an essential role in protecting the rights of the people. The courts also ensure that a person can only be penalized when the established legislation is breached and with reasonable cause. The principle of the rule of law and due process of law restrict the powers of the state and, courts can repeal any law if they violate such principles.
Fundamental Rights– Fundamental rights include all the rights which an individual needs to enjoy life fully. This acts as a restrain against the government as the legislative cannot make laws that restrict fundamental rights. In the case of IR Coelho v. State of Tamil Nadu& others, the court stated that constitutionalism is a principle that controls the government’s power and makes sure that government does not harm the fundamental rights of the people. This principle also requires the court to construe the laws assuming that parliament will not make laws in contravention of fundamental rights. The fundamental rights can be restrained on some grounds. For example, the freedom of speech given under article 19(1) (a) can be restrained only based on provisions given under article 19(2). Similarly, article 21 of the constitution talks about personal liberty given to a person. This can be restrained by the procedure established by the law, which has to be just, reasonable and fair. These restrictions define the limit to which the government can restrict fundamental rights.
Separation of Power– The term separation of power means that the state’s power is split into three organs, i.e. Legislative, Judiciary, and executive. This is done to make sure that one organ does not exceed its power and, each organ can check the power of the other. The subjects on which the laws can be made are divided into three lists, i.e. Union list, State list, and Concurrent list. The subject of national importance is the union list, and the central government can make laws. The subject of regional importance comes under the state list, and state governments can make laws. In the concurrent list, both central and state governments can make laws. In this way, the power of legislation is divided, and it promotes the spirit of constitutionalism.
The spirit of constitutionalism has been included in the constitution through various articles. However, it can be seen in both positive and negative ways. It restricts the power of the government so that it does not exceed the powers given to it, but it sometimes creates hurdles while providing justice to the people.