Introduction

The constitution is nothing but a document of aspiration which cannot be taken away as it emerges from the concept of society and every society needs law. The primary function of law is to provide justice and balance between the various groups in society. The law is not a pure science-based on universal truth or specific formulae, but it is a normative science and it results from continuous striving to develop with a set of rules that balance the rights of an individual and the rights of society. A country may have a legal system, but the people of the country must accept it otherwise it is a less legal system.

The Constitutional concept

Professor Charlton Mcilwain defined constitutionalism in the following words, “Constitutionalism has one essential quality: it is a legal limitation on the government; it is the antithesis of the arbitrary rule; its opposite is despotic government, the government of will instead of law.”[1]Limitation on the government is the most important aspect of constitutionalism in a country that has had a history of autocracy.

Further, it is a philosophy that implies a balance between the powers of the government on the one hand and the rights of the individual on the other hand. Also, it provides a restriction of State power to preserve public peace otherwise any criticism of the government by an individual is against the principle of ‘personal liberty’[2] and the government should act by observing its limitation. However, there is no definite definition of constitutionalism it depends on the severity of the acts from country to country.

Considering India’s experience of constitutionalism is unique in the South-Asian region regardless of immense diversity, poverty, ignorance, lack of multi-disciplinary education, and other negative factors, it has confounded constitution expectation. One cannot take such democratic constitutionalism for granted. It comprises moral, social and legal acceptance of government.

Granville Austin examines the ideals, motivation and the aspiration of the founders of the Indian Constitution from his two books. First, The Indian Constitution: Cornerstone of a Nation[3] analyzes India’s Constitution-making process[4]. Second, Working a Democratic Constitution: A History of the Indian Experience[5] examines India’s experience with democratic constitutionalism. He recounts the Constitution-making process in the history of Indian Constitutionalism as an invaluable resource, and the success of the constitution-making process was the efforts of the microcosm of constituent assembly through debates and discussion by consensus.

The constituent assembly drafted the constitution in such a way that the legislative powers are divided between the center and the state, though there is an overlapping of powers between three pillars of the constitution  (Legislative, Executive and Judiciary) which is protected by judicial activism, otherwise absolute power in one hand would lead to anarchy and failure of constitutionalism.

That there is an existence of a constitution does not ensure constitutionalism, “it is the political maturity and traditions of a people that import meaning to a constitution which otherwise merely embodies political hopes and ideals”[6]. We consider the United Kingdom as a symbol of constitutionalism, however, it does not have a constitution and vice versa with China. I presume it that most of the countries which have constitution they also have the spirit of constitutionalism.

Landmark cases

The Supreme Court cited the characterization of the ideas of constitutionalism in many landmark cases – its aim, objective and constitution-making process. Kesavananda Bharati v. State of Kerala[7], the case was heard and decided by the largest bench of thirteen judges as the heart of Indian Constitutionalism, initially concerned with the constitutional validity of legislation related to land reform in Kerala. It provides that the Fundamental Rights in Part III and the Directive Principles in Part IV are the basic structure of the constitution.

Justice Deepak Mishra on the concept of constitutionalism states that “the essence of constitutionalism is the control of power by its distribution among several state organs or offices in such a way that they are each subjected to reciprocal controls and forced to cooperate in formulating the will of the state.”[8] While considering the power between the lieutenant and Ministers of NCT of Delhi, the court held under Article 239AA(4)[9] the word “any matter” does not mean every matter and also, that the lieutenant should work harmoniously with the Ministers while considering its power under the said provision to protect constitutional morality and values. However, the courts should adopt a pragmatic approach while interpreting the constitutional provision to promote and nurture the spirit of constitutionalism.

In the landmark judgment of Navtej Singh Johar v. Union of India, Section 377[10] was held to be unconstitutional as it penalized consensual sexual acts between adults in private[11]. Here, Justice Rohinton Fali Nariman stated that the fundamental rights in Part III of the constitution are like “the North Star in the universe of constitutionalism in India[12] as it embodies the process of transformative constitutionalism[13] by ensuring that every individual has an equal opportunity to express and develop themselves in society. A stagnant or static society would lead to the failure of constitutionalism.

Justice DY Chandrachud elaborated the concept of “constitution as a tool of social transformation[14]” by referring to the long-drawn history of temple entry movements in India and the recent judgment on Sabrimala[15] was a step towards social and legal transformation, which struck down the practice of disallowing menstruating women on the ground that anything subject to Constitutional value and right is amenable to constitutional control.

Furthermore, it also implies a balance between the state and the court for the religious groups[16] in the society subject to public order, morality and health[17]. Also, subject to the principle of anti-exclusion as elaborated by Gautam Bhatia, “the anti-exclusion principle holds that the external norm of constitutional anti-discrimination be applied to limit the autonomy of religious groups in a situation where these groups are blocking access to basic goods”.[18]

Conclusion

The role of the constitution as a document is for social transformation and not merely a tool for the transfer of political ideas and hope. The idea of Indian courts about the constitution is to transform the society for the better and this objective is the fundamental pillar of constitutionalism. Besides the flexible nature of the constitution and the dynamic and ever-growing change in society, the idea of constitutionalism is redefining through judicial precedents. Nations have to articulate themselves as singular political entities while interpreting the word “we the people of India” to withhold the idea of constitutionalism. 


[1] C.H MCILWAIN, CONSTITUTIONALISM ANCIENT AND MODERN, 21-22 (1987).

[2] INDIA CONST. art. 21.

[3] Oxford University Press (1966).

[4] (2014) 7 SCC I-15.

[5] Oxford University Press (1999).

[6] R.C. Poudyal v. Union of India, (1994) Supp 1 SCC 324.

[7] (1973) 4 SCC 225.

[8] State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501.

[9] INDIA CONST. art. 239AA(4).

[10] Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).

[11] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[12] Ibid, para 352.

[13] State of Kerala v. N.M Thomas, (1976) 2 SCC 310.

[14]Murali Krishnan, There is nothing in the religious sphere which is private: DY Chandrachud on Sabarimala judgment at Harvard Law event, BAR AND BENCH (last visited Nov. 08, 2020), https://www.barandbench.com/news/justice-dy-chandrachud-sabarimala-religion-private.

[15] Indian Young Lawyers Assn v. State of Kerala, (2019) 11 SCC 1.

[16] Shayara Bano v. Union of India, (2017) 9 SCC 1.

[17] INDIAN CONST. art. 25(1).

[18] Gautam Bhatia, “Freedom from Community: Individual Rights, Group Life, State Authority and Religious Freedom under the Indian Constitution”, Global Constitutionalism, Cambridge University Press (2016).

Ronika Tater

She is a 4th year (VII Semester) student, pursuing her B.B.A LL.B (Hons.) with Specialization in Corporate Laws from U.P.E.S Dehradun.