Constitutionalism
Besides the concept of the Constitution, there is also the all-important concept of ‘Constitutionalism’.
Modern political thought draws a distinction between ‘Constitutionalism’ and ‘Constitution’.
A country may have the ‘Constitution’ but not necessarily ‘Constitutionalism’.
For example, a country with a dictatorship, where the dictator’s word is law, can be said to have a ‘Constitution’ but not ‘Constitutionalism’.
The underlying difference between the two concepts is that a Constitution ought not merely to confer powers on the various organs of the government, but also seek to restrain those powers. Constitutionalism recognises the need for government but insists upon limitations being placed upon governmental powers.
Constitutionalism envisages checks and balances and putting the powers of the legislature and the executive under some restraints and not making them uncontrolled and arbitrary.
Unlimited powers jeopardise freedom of the people. As has been well said:
“power corrupts and absolute power corrupts absolutely.”
If the Constitution confers unrestrained power on either the legislature or the executive, it might lead to an authoritarian, oppressive government. Therefore, to preserve the basic freedoms of the individual, and to maintain his dignity and personality, the Constitution should be permeated with ‘Constitutionalism’; it should have some in-built restrictions on the powers conferred by it on governmental organs.
‘Constitutionalism’ connotes in essence limited government or a limitation on government. Constitutionalism is the antithesis of arbitrary powers. ‘Constitutionalism’ recognises the need for government with powers but at the same time insists that limitations be placed on those powers. The antithesis of Constitutionalism is despotism. Unlimited power may lead to an authoritarian, oppressive, government which jeopardises the freedoms of the people. Only when the Constitution of a country seeks to decentralise power instead of concentrating it at one point, and also imposes other restraints and limitations thereon, does a country have not only ‘constitution’ but also ‘constitutionalism’.
‘Constitutions spring from a belief in limited government’. According to SCHWARTZ, in the U.S.A., the word Constitution means “a written organic instrument, under which governmental powers are both conferred and circumscribed”. He emphasizes that “this stress upon grant and limitation of authority is fundamental”.
“Western institutional theorists have concerned themselves with the problems of ensuring that the exercise of governmental power, which is essential to the realisation of the values of their societies, should be controlled in order that it should not itself be destructive of the values it was intended to promote.”
The idea of Constitutionalism is not new. It is embedded deeply in human thought. Many natural law philosophers have promoted this idea through their writings. Some of these philosophers are: ACQUINAS, PAINE, LOCKE, GROTIUS AND ROUSSEAU. The Magna Carta (1215) strengthened the traditional view that law is supreme. As observed by ARTHUR SUTHERLAND, “The Great Charter was obviously a cherished standard, a welcome assurance that people could set some limitation on the arbitrary power of the king.”
A written Constitution, independent judiciary with powers of judicial review, the doctrine of rule of law and separation of powers, free elections to legislature, accountable and transparent democratic government, Fundamental Rights of the people, federalism, decentralisation of power are some of the principles and norms which promote Constitutionalism in a country.
Rule of Law
A few words may be said here about the concept of Rule of Law as other ideas and concepts relating to Constitutionalism will be discussed in due course in the following pages.
The doctrine of Rule of Law is ascribed to DICEY whose writing in 1885 on the British Constitution included the following three distinct though kindered ideas in Rule of Law:
(i) Absence of Arbitrary Power : No man is above law. No man is punishable except for a distinct breach of law established in an ordinary legal manner before ordinary courts. The government cannot punish any one merely by its own fiat. Persons in authority in Britain do not enjoy wide, arbitrary or discretionary powers. Dicey asserted that wherever there is discretion there is room for arbitrariness.
(ii) Equality before Law : Every man, whatever his rank or condition, is subject to the ordinary law and jurisdiction of the ordinary courts. No man is above law.
(iii) Individual Liberties : The general principles of the British Constitution, and especially the liberties of the individual, are judge-made, i.e., these are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts from time to time.
DICEY asserted that the above-mentioned features existed in the British Constitution. The British Constitution is judge-made and the rights of the individual form part of, and pervade, the Constitution. The rights of the individuals are part of the Constitution because these are secured by the courts. The British Constitutional Law is not the source, but the consequence, of the rights of the individuals as defined by the courts.
DICEY was thinking of the common law freedoms, such as, personal liberty, freedom of speech, public meeting, etc. What DICEY was saying was that certain Constitutions proclaim rights but do not provide adequate means to enforce those rights. In the British Constitution, on the other hand, there is inseparable connection between the means of enforcing a right and the right to be enforced.
Referring in particular to the Habeas Corpus Act, DICEY said that it was “worth a hundred Constitutional articles guaranteeing individual liberty.” DICEY however accepted that there was rule of law in the U.S.A., because there the rights declared in the Constitution could be enforced, and the Constitution gave legal security to the rights declared.
The third principle is peculiar to Britain. In many modern written Constitutions, the basic rights of the people are guaranteed in the Constitution itself. This is regarded as a better guarantee for these rights and even in Britain there exists at present strong opinion that basic rights should be guaranteed.
DICEY’S thesis has been criticised by many from various angles but, the basic tenet expressed by him is that power is derived from, and is to be exercised according to law. In substance, DICEY’S emphasis, on the whole, in his enunciation of Rule of Law is on the absence of arbitrary power, and discretionary power, equality before Law, and legal protection to certain basic human rights, and these ideas remain relevant and significant in every democratic country even to-day.
It is also true that dictated by the needs of practical government, a number of exceptions have been engrafted on these ideas in modern democratic countries, e.g., there is a universal growth of broad discretionary powers of the administration; administrative tribunals have grown36; the institution of preventive detention has become the normal feature in many democratic countries. Nevertheless, the basic ideas are worth preserving and promoting.
The concept of Rule of Law has been discussed in several international forums. The effort being made is to give it a socio-legal-economic content and a supranational complexion.
Rule of Law has no fixed or articulate connotation though the Indian courts refer to this phrase time and again. The broad emphasis of Rule of Law is on absence of any centre of unlimited or arbitrary power in the country, on proper structurisation and control of power, absence of arbitrariness in the government.
Government intervention in many daily activities of the citizens is on the increase creating a possibility of arbitrariness in State action. Rule of Law is useful as a counter to this situation, because the basic emphasis of Rule of Law is on exclusion of arbitrariness, lawlessness and unreasonableness on the part of the government.
Rule of Law does not mean rule according to statutory law pure and simple, because such a law may itself be harsh, inequitable, discriminatory or unjust. Rule of law connotes some higher kind of law which is reasonable just and non discriminatory. Rule of Law to-day envisages not arbitrary power but controlled power. Constitutional values, such as constitutionalism, absence of arbitrary power in the government, liberty of the people, an independent judiciary etc. are imbibed in the concept of Rule of Law.
The Indian Constitution by and large seeks to promote Rule of Law through many of its provisions. For example, Parliament and State Legislatures are democratically elected on the basis of adult suffrage. The Constitution makes adequate provisions guaranteeing independence of the judiciary. Judicial review has been guaranteed through several constitutional provisions. The Supreme Court has characterised judicial review as a “basic feature of the Constitution” Art. 14 of the Constitution guarantees right to equality before law. This Constitutional provision has now assumed great significance as it is used to control administrative powers lest they should become arbitrary. The Supreme Court has invoked the Rule of Law several times in its pronouncements to emphasize upon certain Constitutional values and principles.
For example, in Bachan Singh, Justice BHAGWATI has emphasized that Rule of Law excludes arbitrariness and unreasonableness. To ensure this, he has suggested that it is necessary to have a democratic legislature to make laws, but its power should not be unfettered, and that there should be an independent judiciary to protect the citizen against the excesses of executive and legislative power.
In P. Sambamurthy v. State of Andhra Pradesh, the Supreme Court has declared a provision authorising the executive to interfere with tribunal justice as unconstitutional characterising it as “violative of the rule of law which is clearly a basic and essential feature of the Constitution.”
In Wadhwa, the Supreme Court has again invoked the Rule of Law concept to decry too frequent use by a State Government of its power to issue ordinances as a substitute for legislation by the Legislature.
In Yusuf Khan v. Manohar Joshi, the Supreme Court has laid down the proposition that it is the duty of the state to preserve and protect the law and the Constitution and that it cannot permit any violent act which may negate the rule of law.
The two great values which emanate from the concept of Rule of law in modern times are:
(1) no arbitrary government; and
(2) upholding individual liberty.
Emphasizing upon these values, KHANNA, J., observed in A.D.M. Jabalpur v. S. Shukla.
“Rule of law is the antithesis of arbitrariness...Rule of law is now the accepted norm of all civilised societies...Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every state the problem arises of reconciling human rights with the requirements of public interest. Such harmonizing can only be attained by the existence of independent courts which can hold the balance between citizen and the state and compel governments to conform to the law”.
A significant derivative from ‘Rule of Law’ is judicial review. Judicial review is an essential part of Rule of Law. Judicial review involves determination not only of the constitutionality of the law but also of the validity of administrative action. The actions of the state public authorities and bureaucracy are all subject to judicial review; they are thus all accountable to the courts for the legality of their actions. In India, so much importance is given to judicial review that it has been characterised as the ‘basic feature’ of the Constitution which cannot be done away with even by the exercise of the constituent power.
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