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Indian Constitutionalism the fundamental
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right that has been
preeti goyal LLM student
Case Laws provided to every
The concept of constitutionalism is that of a Mangalayatan
citizen of our
university,aligarh
Civil Laws polity governed by or under a constitution that country and has
ordains essentially limited government and rule View articles | Contact author been enshrined in Art 22(1) of the
Company Law Constitution of India. Criminal procedure
of law as opposed to arbitrary authoritarian or code of 1973 has also incorporated this
Constitutional Law totalitarian rule. Constitutional government, therefore, should necessarily be ideology in section 304 of the act.
Consumer laws democratic government.
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Contracts laws In other words, Constitutionalism is a political philosophy in which the
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is not necessary that the states 22583435
who have a constitution must be embodied with the concept of
Environmental Law constitutionalism. According to Douglas Greenberg Total categories 42

family law
, Constitutionalism is a commitment to limitations on ordinary political power, it
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Human Rights laws particular cultural and historical contexts from which it emanates and it resides
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Its a serious problem. Your father and
Insurance / Accident Now to identify that whether constitutionalism is present in India or not. It can mother in law knows everything that is why
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be analyzed with the help of various provisions of constitution that are:- they are supporting him. You must hire a
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government and proves helpful to establish a position of sovereignty under
Media laws fundamental principles of constitutional jurisprudence may be a considerable Family Settlement deed
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Constitution enacted on 26th November,1949, since then, a question always a
matter of great concern that whether preamble is a part of Indian constitution
Tax Laws or not. However, in 1960, In Re Beru Beri case, it was held that preamble is
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Preamble is a part of Indian Constitution.

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More Options Preamble explains the objectives of constitution in two ways, one about the
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be achieved in independent India. Objectives explained in preamble as
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To constitute India into Sovereign, Socialist, Secular, Democratic Republic
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principles of state policy.

According to Justice Subbarao,

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conditions for the people of India and provide them all rights and liberties
within ambit of fundamental spirit of constitutionalism embodied in entire body
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Call us at: 9891244487 / or email explained secularism in this country, as follows:-
at: admin@legalserviceindia.com When India is said to be a secular state, it does not mean that we reject the
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constitutionalism. Second feature is Judicial Review, however, this doctrine is
not clearly stated in Indian
constitution but its reflection is somewhere found in Article 13(2), Actually, this
doctrine was firstly introduced in 1803 by Justice Marshall in Marbury v
Madison(3) case, In USA
where he clearly said that It is the duty of judge to annul the law made by the
legislature which violated the constitution or contrary to it.

The similar spirit found in Article 13(2) of Indian Constitution that the laws
which are inconsistent to part III of constitution shall be declared null and
void, but it is not clearly defined that if any contrary law made, then who will
check its validity, then an answer comes into light in reference to Justice
Marshall that Judiciary can check such contrary acts of legislature and also
can review the laws made by legislature.

And also a concept of Higher law emerged from this doctrine, because a
judge has to follow the mandates or directions of Higher law while checking
the consistency of provision. In written constitution, Higher law depicts
constitution as Supreme but where there is no written constitution; there are
some principles which can be regarded as Supreme or Higher law principle. In
Gopalan V State of Madras (1950) SCR 88(100) has upheld that it is difficult to
restrict the sovereign legislative power by judicial interference except so far as
the express provision of written constitution. It is only the written provisions of
constitution which may restrain legislative power, but where there is no written
constitution, then, who restrain legislative power, and then its answer is
judiciary by following various principles, precedents, customs, usages, and
different statutes can check the consistency.

It clearly signifies that in absence of power of judicial review in hands of

judiciary, judiciary is only a puppet of legislators.

Justice Frankfurter (4)(USA).... said that judicial review, itself a limitation on

popular government, is a fundamental part of our constitutional system; means
if there is no power of judicial review then the constitution merely becomes a
draft for the code of conduct for government as well as citizens, It also
signifies as a

Law without Sanction.

However, this type of situation has been prevalent in India, till 2007, in
different cases, such as Shankari Prasad case, Sajjan Singh case, Golak Nath
case, Keshavanand Bharti case, N.Ramchandra case, traced a picture of
conflict between legislature and judiciary, no clear cut demarcation of powers
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12/8/2017 Indian Constitutionalism
under which organs of government can overview the validity of their actions for
upholding the true spirit of constitutionalism in a political entity could be
realized. But the Raja Ram Pal case and I.R.Coelho v State of Tamil Nadu
case 2007 have reshaped the whole demarcation and establish superiority of
principles such as Basic Structure Theory enhancing the spirit of
constitutionalism.

In this way, by exercising Appellate and Advisory jurisdiction, judiciary can

secure uniformity in the interpretation and application of the constitution as
amongst the states.

Third provision is Rule of Law, on its basis spirit of constitutionalism can be

present in a state. This doctrine is given by dicey (a well known
constitutionalist of England) in 1865 wrote a book titled

An Introduction to the law of the constitution in which the term Rule of Law
was given a comprehensive amplitude. In reality, it is a doctrine of England
where there is no written constitution, so it is placed as a higher law there to
check the validity of any law made by legislature. This doctrine shows that
whatever law is present in our state, must be ruled over everyone, meaning
thereby the law is supreme in all respect and in every sphere. It clarifies that
No one above the law. Now a question arises, what the law is? The answer
of this question resides in two principles that are-

Due Process
Procedure established by law.
Due Process is a doctrine of USA, and its ambit is not defined
comprehensively, but its sphere is to be explained by judges as per the facts
and circumstances of the case. It represents judicial supremacy and also there
is a danger for judicial autocracy because the court if not self restrained may
go beyond the limits set by the constitution.

But in India, there is a Procedure established by law doctrine prevails,

adopted from

Constitution of Japan
and clearly enshrined in Article 21 of Indian Constitution. It shows
parliamentary sovereignty because in India, law is made by the legislature, it
restricts the judicial supremacy and only infers right to do literal interpretation
not statutory construction of laws.There are also some other elements
embedded in Rule of law, such as

Absence of arbitrary power on the part of government, which is undoubtedly

present in form of judicial review in which judiciary always look after the
actions of other organs of government.

Equality of all persons in the eye of law, which can be justified on the basis of
provisions of Article 14-18 with some reasonable restrictions.

Rules of constitutional law are the results of the ordinary law of the land
means the laws made by legislature must not be contrary to the provisions of
constitution, otherwise it will be declared as null and void.

In England, Rule of Law flourished sovereignty of legislature, being unwritten

constitution there is no higher law to circumscribe the plenary powers of the
sovereign legislature but in India, there is written constitution and the concept
of judicial review also present, so the doctrine of Rule of Law cannot be
assigned a paramount place. But to promote the spirit of constitutionalism, the
shadow of this doctrine reflects in various provisions of Indian Constitution in
the form of fundamental principles of natural justice.

Next provision is Separation of Power

Among organs of government. In India, under Article 245,246 and Schedule
VII there is a clear demarcation of legislative power among union and state
government, under Articles 256-263 administrative relations are also clearly
defined, and under Article 254 if there is any inconsistency between centre
and state laws, then central law prevails, under Article 264-291 fiscal relation
between centre and state is given, meaning thereby there is a rare chance of
clash between union and states, so that public policies can be properly
implemented as per the requirements of the people. As the powers of centre
and state clearly divided, so there is no space to use arbitrary powers over any
subject. Generally, subjects which have national importance vests in Union list
and those have regional importance vests in State list and for the
establishment of unity and integrity in the nation, Concurrent list is made in
which for universalization of laws, central government made law but according
to the requirements of a particular region, state legislature may make any
amendment in the provision.

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12/8/2017 Indian Constitutionalism
In this way, this feature also promotes the spirit of constitutionalism.

And other provisions as Fundamental rights defined in Articles 12-35, provide

some rights to the citizens and to every person for whose infringement people
may approach towards Courts of Justice under Articles 32 and 226
respectively of Indian Constitution, which shows that citizens also have some
rights to protect themselves from the arbitrariness of government. And
Directive Principles of state policy under Articles 36-51 connotes that these
principles should be in consideration of government while framing of its
policies, because its trend helps to provide or flourish social, economic
equality among people. As the aim of government cannot touch their
destination without the contribution of public at large. Thats why the
Fundamental duties of citizens also explained in Article-51A which should be
obeyed by every citizen of nation.

In this way , these provisions shows the checks and balances among the
actions of governmental organs and the public. The Emergency provisions
under Articles 352, 356 and 360 also shows the spirit of constitutionalism by
restraining the exclusive powers of state organs at the time of external
aggression, armed rebellion, failure of constitutional machinery in particular
state, financial crisis etc. It signifies the curtailment of powers of state
functionaries in favour of public interest and all powers vests in union
government to deal with such sort of situations. To uplift weaker sections of
society, concept of reservation is also present in Indian constitution under
Articles 330-342, in these provisions Doctrine of Appeasement is present by
providing some reserved seats to lower society people in every functionary
organ of government. Such as-under Articles 330 & 332, Reservation of seats
for SC and ST in House of People and legislative assembly of states. With the
help of this clause, the problems related to SC and ST comes in front of
legislature and proves helpful to protect the interest of particular community.

Conclusion
The brief discussion of provision of constitution provides us a vision to see the
process going on in the political system of country, 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. In this
way, In India constitutionalism is undoubtedly present but there is only one
exception that the doctrine of Rule of Law does not prevail in India as in
England (regarding parliamentary sovereignty). It exists in India in form of
natural justice principles to govern administrative functions, since the rule of
law and judicial review in a single system cannot be realized easily. It would
create a conflict between parliament and constitution (The Guardian of
constitution i.e. judiciary).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.

References:-
(1) www.princeton.edu
(2) In his book Recovery of faith, page 184
(3) 1 cranch 137 ; 2L ed.60
(4) Minnersville School Dt. V. Gobitis (1940) 310 US 586 (600)
(5) Described in Vth and XIVth amendment of US Constitution
*** The author can be reached at: preetigoyal@legalserviceindia.com

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