constitutionalism, doctrine that a government’s authority is determined by a body of laws or constitution. Although constitutionalism is sometimes regarded as a synonym for limited government, that is only one interpretation and by no means the most prominent one historically.

In the most basic sense, a “constitution” is a set of laws or regulations that establish, organize, and specify the boundaries of governmental power. When viewed in this light, all states are constitutional states and have constitutions. Anything that can be recognized as a state must have a recognized method of establishing and defining the restrictions (or lack thereof) imposed on the three primary types of governmental authority: judicial power (resolving legal disputes), executive power (making new laws), and legislative power (making new laws).

Consider the extreme situation of Rex, an absolute king with unrestricted power in all three areas. If it is widely accepted that Rex possesses these powers and the right to use them as he pleases, then it may be claimed that the state’s constitution merely has one provision that gives Rex unrestricted power. He is not constrained by protocols or any other forms of restrictions or requirements when using his authority, and he is not legally responsible for the morality or wisdom of his decisions. His decisions are constitutionally legitimate.

However, when academics discuss constitutionalism, they typically mean anything that disqualifies Rex’s claim. They imply that laws not only establish legislative, executive, and judicial powers but also place restrictions on those powers.[1] These restrictions frequently take the shape of individual or collective rights against the government, including rights to things like freedom of expression, association, equality, and due process. But constitutional restrictions might take many different shapes. They can concern such things as the scope of authority (e.g., in a federal system, provincial or state governments may have authority over health care and education while the federal government’s jurisdiction extends to national defence and transportation); the mechanisms used in exercising the relevant power (e.g., procedural requirements governing the form and manner of legislation); and of course civil rights (e.g., in a Charter or Bill of Rights).

Constitutionalism in this broader sense of the word refers to the notion that the government’s powers can and should be limited and that its legitimacy depends on these restrictions being upheld. Because there are no constitutional restraints on Rex’s power, his society has not adopted constitutionalism in the broadest sense. Consider a different state where Regina has all the same authority as Rex, with the exception of the ability to pass laws pertaining to religion. Assume moreover that Regina is not authorized to enforce any laws that fall outside the purview of her legislative authority or to render judgments based on such laws. The seeds of constitutionalism as it has come to be understood in Western legal philosophy are present here.

In discussing the history and nature of constitutionalism, a comparison is often drawn between Thomas Hobbes and John Locke who are thought to have defended, respectively, the notion of constitutionally unlimited sovereignty (e.g., Rex) versus that of sovereignty limited by the terms of a social contract containing substantive limitations (e.g., Regina). But an equally good focal point is the English legal theorist John Austin who, like Hobbes, thought that the very notion of limited sovereignty is incoherent. For Austin, all law is the command of a sovereign person or body of persons, and so the notion that the sovereign could be limited by law requires a sovereign who is self-binding, who commands him/her/itself. But no one can “command” himself, except in some figurative sense, so the notion of limited sovereignty is, for Austin (and Hobbes), as incoherent as the idea of a square circle. Though this feature of Austin’s theory has some surface plausibility when applied to the British Parliamentary system, where Parliament is often said to be “supreme” and constitutionally unlimited, it faces obvious difficulty when applied to most other constitutional democracies such as one finds in the United States and Germany, where it is clear that the powers of government are legally limited by a constitution. Austin’s answer was to say that sovereignty may lie with the people, or some other person or body whose authority is unlimited. Government bodies — e.g., Parliament or the judiciary — can be limited by constitutional law, but the sovereign — i.e., “the people” — remains unlimited. Whether this provides Austin with an adequate means of dealing with constitutional democracies is highly questionable. For Austin’s sovereign is a determinate individual or group of individuals whose commands to others constitute law. But if we identify the commanders with “the people”, then we have the paradoxical result identified by H.L.A. Hart — the commanders are commanding the commanders. In short, we lapse into incoherence.

• In India, constitutionalism is considered to be a natural corollary to the fundamental governance of the country.
• The Constitution of India with the aid of various legislations has developed a detailed and robust mechanism to put into place administrative mechanisms for the smooth functioning of the machinery of governance.
• However, due to a variety of factors, the distance between the government and the governed has been growing with every passing year. The rich are getting richer and the poor have resigned to their fates, areas which were backward sixty years ago remain as such.

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 Vs. 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. Chandrachud, CJ, in Minerva Mills case observed, – “The Constitution is a precious heritage and, therefore, you cannot destroy its identity”.

Principles of Constitutionalism:

Separation of Powers

Separation of powers divides the mechanism of governance into three branches i.e., Legislature, Executive and the Judiciary. This not only prevents the monopolization of power, but also creates a system of checks and balances. As this division of powers is in the Constitution itself, this becomes an effective tool for ensuring Constitutionalism.

Responsible and Accountable Government           

In a democratic setup, the government is elected so that it can serve the people who help elect it. It is in this sense that the electors have a right to demand accountability and answers from their government. Therefore, when the government fails the expectations of the electorate, the authorization to govern is revoked by voting them out.

Popular Sovereignty

The concept of popular sovereignty lays down that the government derives its legitimacy from the people. No corporate body, no individual may exercise any authority that does not expressly emanate from it. Even though there is a certain sovereign entity that is empowered to govern, ultimate sovereignty resides in the nation. The power of such a sovereign entity emanates from the public.

Rule of Law

The presence of rule of law means that the government does not belong to men but to the laws. Dicey lays down three essential components of Rule of Law:

• Nobody is to be punished except for a specific breach of law that is established in an ordinary legal manner before ordinary courts of law.
• No one is above the law.
• Courts play a vital role in protecting the rights and freedoms of an individual.

Independent Judiciary

The independence of the Judiciary is the essence of any liberal democracy and the foundation of a free society. The Judiciary is the upholder of Rule of law and if its independence is taken away, it puts the entire rule of law in jeopardy. The Constitution also envisages the separation of the judiciary from the Executive under Article 50.

Individual Rights

The rights of the individual shall be at the highest pedestal for constitutionalism to thrive. The constitutional setup in India gives these rights the importance that they deserve by engraving them in Part III of the Constitution. These individual rights have not only been protected by the courts but have also been interpreted in a manner where their effect and implementation has broadened.  The enforcement of these rights is ensured by the Constitutional Courts i.e. the Supreme Court and the High Courts.

Civilian control of the military

Apart from these features, constitutionalism envisages that the control of the military should be in the hands of a civilian government so that the military does not interfere in the democratic decision making or attempt a military coup.

Police Accountability

Constitutionalism also envisages that police while performing its duties shall uphold the rights, freedoms and dignity of the individuals, the same can be ensured by bringing the police under the control of laws and courts.

Conclusion

All thriving democracies have a constitutionalism concept that has been around for a while. However, governments have learnt over time to use the resources of the state for their own gain rather than that of the people. The government has tainted the policymaking process, whose main goal is the welfare of the greater public, by allowing backdoor access to corporate interests in decision-making. The very law that was passed to protect people’s rights is now being utilized to repress and deprive them of their rights.