PC: Live Law
Introduction
Constitutionalism is the doctrine that governs the legitimacy of government authority. It implies that the exercise of power must be in accordance with the Constitution, which acts as the supreme law of the land. In India, constitutionalism is rooted in the principles of democracy, rule of law, separation of powers, and protection of fundamental rights. The Indian Constitution, adopted on 26th November 1949 and enforced on 26th January 1950, embodies these ideals, ensuring that governance remains within the framework of constitutional limits.
Difference Between Constitutionalism and Constitutional Morality
While constitutionalism refers to adherence to the constitutional framework, constitutional morality goes beyond the written text and encompasses the values, spirit, and ethical foundations of the Constitution.
- Constitutionalism ensures that the government functions within legal boundaries.
- Constitutional morality (a concept emphasized by Dr. B.R. Ambedkar) refers to the commitment to constitutional principles like justice, liberty, equality, and fraternity, even when not explicitly stated.
As Granville Austin noted,
"The Indian Constitution is first and foremost a social document, and its provisions are aimed at achieving social revolution."
Similarly, Dr. B.R. Ambedkar stated in the Constituent Assembly:
"Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it."
Views of Constitutional Experts on Constitutionalism
Several Indian and foreign scholars have elaborated on constitutionalism:
1. Dr. B.R. Ambedkar – Stressed that constitutional morality is essential for sustaining democracy.
2. Granville Austin – In "The Indian Constitution: Cornerstone of a Nation", he highlighted the Constitution’s role in balancing social transformation and stability.
3. Nani Palkhivala – Called the Constitution a "vehicle of life" that must evolve with societal changes.
4. H.M. Seervai – In "Constitutional Law of India", he emphasized judicial review as a key aspect of constitutionalism.
5. Upendra Baxi – Argued that constitutionalism in India must be "transformative" to address social inequalities.
Constitutional Provisions Enabling Constitutionalism in India
Several provisions ensure constitutionalism in India:
1. Preamble – Lays down the ideals of justice, liberty, equality, and fraternity.
2. Fundamental Rights (Part III) – Guarantees individual freedoms (e.g., Articles 14-32).
3. Directive Principles of State Policy (Part IV) – Guides governance towards welfare (Articles 36-51).
4. Judicial Review (Article 13, 32, 226) – Ensures laws comply with the Constitution.
5. Separation of Powers – Between legislature, executive, and judiciary.
6. Independent Judiciary – Protected via Articles 124-147.
7. Basic Structure Doctrine – Established in Kesavananda Bharati (1973), prevents arbitrary amendments.
Key Functions and Parameters of Constitutionalism
1. Limiting Government Power – Prevents authoritarianism.
2. Protecting Fundamental Rights – Ensures individual freedoms.
3. Ensuring Rule of Law – Equality before law (Article 14).
4. Judicial Independence – Safeguards against executive overreach.
5. Federalism – Balances Centre-State relations.
6. Accountability & Transparency – Through checks and balances.
Factors Promoting Constitutionalism in India
1. Fundamental Rights – Act as a check on state power.
2. Free & Fair Elections – Ensure democratic legitimacy.
3. Vibrant Civil Society – NGOs, media, and public interest litigation (PIL) uphold constitutional values.
4. Judicial Activism – Courts have expanded rights through interpretations (e.g., Maneka Gandhi v. UoI, 1978).
Threats to Constitutionalism in India
1. Political Majoritarianism – Undermining minority rights.
2. Judicial Delays – Weakens enforcement of rights.
3. Corruption & Criminalization of Politics – Erodes rule of law.
4. Arbitrary Use of Sedition Laws (Section 124A IPC, now section 152 BNS but don't use the word sedition) – Suppresses dissent.
5. Weakening of Institutions – E.g., CBI, EC facing political interference.
Important Case Laws Upholding Constitutionalism
1. Kesavananda Bharati v. State of Kerala (1973) – Basic Structure Doctrine.
2. Maneka Gandhi v. Union of India (1978) – Expanded Article 21 (Right to Life).
3. Minerva Mills v. Union of India (1980) – Balanced FRs & DPSPs.
4. Indira Gandhi v. Raj Narain (1975) – Judicial review over elections.
5. ADM Jabalpur v. Shivkant Shukla (1976) – (Negative precedent) Suspension of rights during Emergency.
6. S.R. Bommai v. Union of India (1994) – Secularism is part of Basic Structure.
7. Navtej Singh Johar v. UoI (2018) – Decriminalized homosexuality (Article 14, 15, 21).
8. Puttaswamy v. UoI (2017) – Right to Privacy as fundamental right.
9. Shayara Bano v. UoI (2017) – Struck down Triple Talaq.
10. K.S. Puttaswamy (Aadhaar Case, 2018) – Limited state surveillance.
Way Forward: Recommendations & Reforms
Committee Reports & Recommendations
1. Law Commission Reports
- Suggested reforms in sedition laws (277th Report).
- Recommended strengthening judicial accountability.
2. Second Administrative Reforms Commission (ARC)
- Emphasized transparency and accountability in governance.
3. National Commission to Review the Working of the Constitution (NCRWC, 2002)
- Recommended strengthening local governance (Panchayati Raj).
- Suggested reforms in electoral funding.
Best Global Practices
- South Africa’s Constitution – Strong socio-economic rights enforcement.
- Germany’s Basic Law – Rigid amendment process to protect democracy.
Conclusion
Constitutionalism in India is a dynamic concept that evolves with judicial interpretations and societal changes. While challenges like political authoritarianism and judicial delays persist, the judiciary, civil society, and constitutional bodies play a crucial role in upholding constitutional morality. As Dr. Ambedkar warned, "If we wish to maintain democracy, we must hold fast to constitutional methods."
To strengthen constitutionalism, India must focus on judicial reforms, electoral transparency, and protecting fundamental rights. The Constitution is not just a legal document but a living instrument that must adapt to ensure justice, liberty, and equality for all.
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