1.3. Understanding the Constitutionalism

The unrestrained/unchecked state power may be exercised arbitrarily by the rulers. A Constitution is created as a defence mechanism over and above the state power. This arrangement, which forces the rulers to stay within the jurisdiction by means of a (generally) written or even unwritten Constitution, is called Constitutionalism.

Constitutionalism implies that the exercise of political power shall be bound by limitations, checks, controls and rules. The concept of Constitutionalism incorporates the principles of ‘limited government’ and ‘rule of law’, as against arbitrary and authoritarian discharge of power.

A limited government is a political system in which legalized governmental power is restricted by law, usually the constitution. Countries with limited governments have laws about what government can and can’t do. Any country that has a democratic governmental system is an example of one that is a limited government. Many countries throughout the world have a limited government, and a few examples are United States, England, Australia, Japan etc. In India, it is constitutionally- limited government, bound to specific principles and actions by the constitution.

According to K C Wheare and W G Andrews, Constitutionalism implies:

♤ Division of powers

♤ Acceptance of plurality of interests in society

♤ No authoritative or dictatorial leadership

♤ Minimum constraints on individual freedom

According to Carl J Friedrich, the division of powers is the most important basis of Constitutionalism. Constitutionalism may exist in a monarchy or republic, aristocracy or democracy, if there is division of power.

1.3.1. Constitutionalism in India

Constitutionalism in India is an amalgamation of the following underlying principles:

♤ Written Constitution,

♤ Responsible Government,

♤ Parliamentary Democracy,

♤ Rule of Law,

♤ Fundamental Rights,

♤ Separation of Powers and Checks and Balances,

♤ Flexibility of Constitution and its Basic Structure,

♤ A Federal Form of Government,

♤ Independent Judiciary and Judicial Review etc.

The concept of Constitutionalism has been recognised by the Supreme Court in Rameshwar Prasad v. Union of India. The Court stated, “The constitutionalism or constitutional system of Government abhors absolutism-it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.”

In IR Coehlo v. State of Tamil Nadu, the Court held that Constitutionalism is a legal principle that requires control over the exercise of governmental power to ensure that the democratic principles on which the government is formed shall not be destroyed.