Constitution and Constitutionalism: An Overview
Constitution and Constitutionalism: An Overview
By Pushkal Garewal
(“Constitutions spring from a belief in a limited government.”)
- Schwartz
The interpretation of statute in context with constitutionalism is the negation of absolute power and the totalitarian state, the literal meaning suggests the constitutionalism is the “limited government”, but the meaning of constitutionalism is not limited to the "limited government." Instead, the scope of constitutionalism is much wider. The different scholar interpreted this adherent word with the constitutional law and defines the glory of the constitution. According to Douglas Greenberg, “constitutionalism is a commitment to limitations on ordinary political power, It revolves around a political process, One that overlaps with democracy in seeking to balance state power and individual and collective rights, It draws on particular cultural and historical contexts from which it emanates and it resides in public consciousness. Roger Scruton defines constitutionalism as the advocacy of constitutional government, i.e. “Government channelled through and limited by a constitution.”
The antithesis of constitutionalism jeopardizes the freedom of mankind; it is not only the biggest threat to the democracy but also the natural laws of an individual. My great concern will be directed towards the core of the constitution and its significance to the nation. For a state to survive the constitutionalism is not only a significant feature as the constitutionalism is a political philosophy and it’s up to the discretion of the state. For instance, the command and direction of the ruler in an autocratic state may be defined as the constitution but the paradigm and ideology of constitutionalism is unaccounted. Constitutionalism means different things in different settings, it will refer both to an Englishman’s affection for parliament sovereignty and to an American’s affection for judicially imposed limitations on legislative authority.
The word constitutionalism may be new to the society but the idea of constitutionalism is archaic and elixir to the democratic state. This ideology can be seen from the imposition of Magna Carta 1215 A.D. India has taken the idea of constitutionalism from the United States, as independence of judiciary, rule of law, federalism, decentralized government are some of the features of the constitutionalism, When compare all this features to the other state such as United States and United Kingdom both states follow the ideology of constitutionalism.
What is freedom?
Nani Palkhivala speech on 24th and 26th amendment defining freedom and limiting the limits of the legislation.
Freedom is not what we have inherited in your bloodstream from our father, freedom is what we have to fight for it, cherish it, and preserve it all the time otherwise it will get vanish and it is already vanishing it in the form of 24th amendment 1975.
You may not know the law you don’t have to know the law to know the implications of the 25th amendment, all you need to do is some experience of human affairs and some common sense which makes you understand which is good for you and which not good for your children. This constitution is not intended for you and me, it is intended to give such a momentum to the living principles of the rule of law. That democracy and civil liberty may survive in India in our own time and in taste when our place we know us no more. This is the future and unfolding future of our great constitution, when right to property is interpreted, your property can be taken away by the government your own little home your own little shop, you may be a barber or a cycle repairer it can be taken away by the government irrespective that you inherited from your father or forefather but it is taken away without payment of compensation. All that has to be paid to you is an amount. Now, an amount, any dictionary will tell you is a rupees sum of money and the sum of money could be hundred or so. A property can be of thousand rupees but it can be taken away in consideration with hundred rupees. But later it was struck down by the Supreme Court on the grounds that it is not real power of the legislation, it is done in a manner not warranted by the constitution. The second provision made in the 25th amendment of the constitution in article 31-C which says if an act passed by the parliament or any state legislature, which starts with, the act is intended to give effect to the directive principles of state policy so no fundamental right is shall be challenged. For instance, if your father built a house for you saving money entire his life and in your neighbour a rich politician built a mansion out of the undisclosed and a corrupt wealth so you cannot and if the government take away your property and not of that rich politician. So you cannot plead that your fundamental right, right to equality is violated under this amendment. Amendment 26th of the constitution talks about the Privy Purse which also means that a person has no right to be heard or he has no right to move to the court against the government. To strengthen the point, Justice Simon, a judge in the House of Lords in England who deliver a memorial lecture in London university4th December 1970. He strongly believes that a parliament should introduce a Bill of rights in simple language which means fundamental right. He said in that period a day may come that an individual is charged for criminal offence criticizing the acts of the government, when such a law is passed the judge has only two option, either to resign and do not administer such law or to convict the individual for criticizing the government or a day may not come when bill of rights is given to the individuals and if the highest judiciary thinks that fundamental rights are needed so what about us who have completed only 24 years of independence whose 64 percent is illiteracy rate and the authorities sitting in the parliament of this country thinks that we don’t need fundamental rights. An individual has no right to infringe the fundamental right of any other citizen, but let the constitution remain sovereign and the people retain that sovereignty by keeping this right into themselves if that happens then alone you will find freedom will survive. Now finally, our constitution can stand today without the amendment will ensure that this great nation can have stability without stagnation and change without the destruction of human value.
The negation of constitutionalism has the capacity to wobble the democratic state, and the emergency period is an apotheosis where the doctrine of constitutionalism was challenged as the absolute power of the government tremble the basic structure of constitution which preserves the constitutionalism. Constitutionalism functions on the check and balance system where one organ of state is accountable to the other and no absolute power is given to any organ.
Indian constitution has a dynamic attribute and never-ending growth of constitution. Early history of Indian supreme court delivers a disastrous judgment. It was disastrous to article 21 of the constitution of India. Article 21 is most important fundamental right to preserve the very nature of the constitutionalism. That Supreme Court judgment during the time of emergency said the life and liberty of an individual can be taken away by the legislature. The further improvisation made and said the article 21 should go along with article 14 and 19 of the constitution. And there is one more restriction on the legislative power of parliament or any legislative assembly or institution that all law must be reasonable restrictions on fundamental rights. Simple jurisdiction of the Constitution is that whenever you impose any legal restrictions by passing a law on a freedom of human beings such as freedom of speech and expression, freedom of forming an association and so forth. All these restrictions must be reasonable and they must be advanced and they must be imposed for the purpose of helping higher interest to persist for that they are not harmed. For example, you cannot go on abuse any person or defame and pleading freedom of speech and expression but the reasonable restrictions can be put but the legislature cannot put an absolute restriction on freedom of speech. Separation of power strengthen the ideology of constitutionalism and introduce the concept of “limited government. “constitutionalism is crucial for a democratic state to prevent it from a totalitarian state and most importantly to preserve the natural human rights of an individual.
- Pushkal Garewal
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