Introduction to Constitutionalism
“The essence of constitutionalism in a democracy is not merely to shape and condition the nature of majorities, but also to stipulate that certain things are impermissible, no matter how large and fervent a majority might want them.”
– George Will
Constitutionalism is a political ideology that believes that the authority of the Government is subject to a body of laws or the Constitution. It is guarded by the Rule of Law, a doctrine that believes in the notion of the supremacy of law, and it serves as an antithesis to the despotic regime. In 1215, King John of England signed the Magna Carta which limited the powers of the King. Meanwhile, the English Bill of Rights was introduced in 1689.Americans were first to give the Bill of Rights a constitutional status by imbibing the same into their constitution. Thus, the concept of Constitutionalism has a very long and colorful history.
The Constitution of India was enacted on November 26, 1949. The written Constitution which came to force on January 26, 1950, is the supreme law of our country and it establishes notions of a welfare state, secularism, federal Government with a strong centre, a multi-party democracy, and so on.
The goal of the U.S. Constitutional Convention that was set up in Philadelphia in 1787 was to amend the Articles of Confederation of 1777. However, this convention gave way to the drafting of a whole new constitution. Drafted in 1787, the American Constitution has stood the test of time. Carl Friedrich said that-“In America, Constitutionalism struck deeper root than almost anywhere else on earth.”
The Conception of the Indian Constitution and the Constitution of the United States
In 1945, the British forces finally succumbed to India’s wishes to set up a brand new Constitution through the agency of the Constituent Assembly that was chosen on the basis of Universal Adult Franchise. Following the acceptance of the recommendations of the Cabinet Mission of 1946, the elections to the Constitution Assembly were conducted. The Indian Independence Act of 1947 necessitated the formation of 2 independent territories-India and Pakistan. As the Indian Independence Act of 1947 came into effect, the British rule in India came to a halt.
Post-independence, the drafting of a new constitution was of paramount importance. The Constituent Assembly, which was brought into existence in 1946 by the British forces, had limited authority. Thus, it was freed from limitations with the attainment of independence. A Drafting Committee was set up with Dr. B.R. Ambedkar serving as its Chairperson. After a lot of contemplation and proposals over the next 2 years, the Constitution of India was adopted on November 26, 1949 and it finally came to force on January 26, 1950.
In the U.S., the concept of constitutionalism and the written Constitution go hand in hand. Alexander Hamilton, a legal scholar and politician, called for a Constitutional Convention in 1786. In 1787, the Convention took place in Philadelphia with George Washington serving as the President of the same. While the initial purpose was to make changes to the Articles of Confederation, the discussions of the Convention shifted towards the creation of a new constitution. By September 1787, the final text of the Constitution had been framed and drafted. In 1789, the Bill of Rights became a part of the Constitution which extended certain protections to the citizens of the country. Some of them include Freedom of Speech, Protection from unreasonable search and seizure, Right to assemble peacefully, and so on. Over the past 200 years, the Constitution of America has been subjected to a lot of amendments.
Conceptualized over 200 years ago, the American Constitution is the first written constitution. However, it is also the shortest constitution in the world comprising only seven articles. The Indian Constitution, on the other hand, consists of 448 articles in 25 parts and 12 schedules.
Judicial Review
Judicial review is one of the provisions of the constitution that can help scrutinize the expanse of constitutionalism in a country. The doctrine of judicial review has not been explicitly stated in our constitution. However, Article 13(2) provides for the same. Under the Indian Constitution, the viability of any law or order can be challenged in the court if it violates any fundamental right if it is simply outside the capacity of the body that framed the law or if it goes against the provisions of the constitution.
There is no clear mention of judicial review in the American Constitution either. In the Marbury v. Madison[1], Justice Marshall established the precedent of judicial review in the United States. This precedent of judicial review in the U.S. is based on the notion of due process of la”, which was later imported in our country as seen in the Maneka Gandhi case[2].
The scope of Judicial review in India is somewhat constricted as compared to the U.S. While the Indian judiciary can discard a law only if it is unconstitutional, the judiciary of the U.S. enjoys more freedom when it comes down to rejecting any legal enactment.
Furthermore, the Indian constitution believes in the “procedure established by law” as opposed to the “due process of law”.
If found contradictory to the constitution, the American Judiciary can declare a law ratified by the Government as unenforceable. India, however, has borne witness to a constant tussle between the Supreme Court and the parliament.
Separation of Powers in India and the US
“Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no constitution.”[3]
In the USA, the doctrine of separation of powers is practiced in the form of division of responsibilities among the Legislature, the President, and the Judiciary through an agency of Article I, II, III of the American Constitution. This practice of separation of powers is accompanied by a system of checks and balances. Even though the American Constitution has adapted this principle, the same has not been expressly mentioned.
In India, the doctrine of separation of powers has been explicitly stated in Article 50 of the Constitution. However, in practice, the three organs i.e., the Executive,the Legislature, and the Judiciary tend to exercise the functions of each other from time to time. Thus, this doctrine has not been put to practice rigorously in either of the nations.
The Bill of Rights and the Fundamental Rights
According to Louis Henkin, constitutionalism is composed of several elements. One of these elements, according to him, is the existence of a limited Government subject to a bill of individual rights.
The Bill of Rights, which came into effect in 1791, extends certain basic rights and liberties to the people of the United States. These rights include the right to Religion, right to bear arms, right to peaceful assembly, speech, and so on. Part III of the Indian Constitution, which contains a list of Fundamental Rights, is referred to as the Magna Carta of India. The framers of our constitution took inspiration from the Bill of Rights and incorporated these essential rights into our constitution. These fundamental rights in the Indian Constitution are more detailed as compared to any other Bill of Rights. All of these rights are subject to certain reasonable restrictions.
Following the 9th and 10th Amendment to the American Constitution, many other rights that have not been mentioned under the Bill of Rights can be professed as rights. However, under the Indian Constitution, only the rights mentioned in Part III of the Constitution can be claimed as Fundamental Rights.
The Bill of Rights, unlike the Fundamental Rights, expressly establishes the right to due process. The rights granted under the Bill of Rights cannot be suspended under any circumstances, as opposed to the suspension of certain Fundamental Rights at the time of a national emergency.
Conclusion
Several ideals that are the basis of constitutionalism have been put into practice in the running of the two different nations. Laws and rules exist which serve as limitations upon the powers of the Government. However, the process of exercise of these ideals isn’t without faults. Strong in theory, the system of separation of power accompanied by the process of checks and balancesare somewhat unstable in practice. This is because at the end of the day, all of these divisions are administered and regulated by the same set of people.
In India, rule of law serves as the basis for the governance of the country. However, the country’s development has time and again been pushed back as a result of rampant corruption at various levels.
The concept of “constitutionalism” itself has been at the receiving end of a lot of criticism. Jeremy Waldron, professor of law and philosophy, has contended that constitutionalism is undemocratic. The term “Anarcho-constitutionalism” has been coined by Rothbard, according to whom, the constitution is not capable enough to protect the individual rights of the people against the authoritative Government.
By-
Abantika Ghosh
[1] 5 U.S. (1 Cranch) 137 (1803).
[2]Maneka Gandhi v. Union of India [1978 AIR 597]
[3]French Declaration of the Rights of Man and Citizen of 1789, § 16.