Author: Subhajit Samanta, V Year of B.A.,LL.B from Bikash Bharati Law College (University of Calcutta).
“A duty well performed creates a corresponding right"
A Constitution is the fundamental law of the nation and it is an organ of living document which sets out the framework and source of legislative power of the government of a state. However, the constitutionalism is a legal principle which requires to control over the exercise of governmental power to ensure that it does not destroy the democratic principles upon which it is based. Besides, it denotes that government has limited power and none of its organs are conferred such powers in absolute nature. This is covered a liberal democratic Constitution where individual citizens have entrenched rights for electing those who will be ruling upon them. The core spirit of constitutionalism is responsible government and its limitation would depend upon the choice of the system by those who are setting up the Constitution. Generally, it is a theory of governance and Constitution confers the institutions which in combination would provide the governance. The salient features of Constitutionalism are Freedom and liberty of the people, Independent Judiciary, Separation of power, Constitutional remedies, Judicial review, Fundamental rights, Prohibition arbitrary detention, Democratic Republic, etc.
This is one of the most crucial theory of governance. It ensures that the freedoms of the individual are given primacy and the State does not encroach upon the liberty of the citizens. It has an oldest history over two thousand years. The ideals of democratic Government and republican institutions were first conceived and practised a thousand years before Christ when the people of Mithila established the world's first Republic. We have historical evidence which indicates that in the days of the Buddha or even earlier, India did flourish certain kinds of democracy in its parts. However, the republics of those days were confined to small areas, tribes and operated in highly decentralised manner. This paper tries to evaluate the concept of constitutionalism and how it has been applied in the Constitution of India.
SALIENT FEATURES OF CONSTITUTIONALISM
Every law in the world is made for the welfare of the human being. They have one common object that is to promote the well being and larger interest of the society as a whole. In India, the Constitution is not for the exclusive benefit of Governments and States, lawyers, politicians or officials those highly placed. It also exists for the common people in the nation and constitutionalism is most crucial to protect some basic features of the Constitution which will not be changed in any circumstance such as:
The term 'democratic' denotes that the Constitution was established a form of government which confers its authority from the will of the people. Therefore, the rulers would be elected by citizens of the country and they are responsible to them. The essential characteristics of a democracy are Justice, Liberty, Equality and Fraternity which are mentioned under the Preamble of the Constitution as these are objectives. The Preamble confers that the Constitution of India is enacted and adopted by the people of India and they are the ultimate director of the Republic. Therefore, the actual power is in hands of the people both in the Union and States in India. The term 'Republic' denotes that there must be an elected head of the nation who would be the chief executive head as the President of India who is not a hereditary monarch, however, an elected person chosen for a limited period and It is an essential ingredient of a Republic.
The number of fundamental rights in a Constitution without any provision for their proper safeguards would not serve useful purpose. Therefore, the existence of a right which depends upon the remedy for its enforcement unless there is remedy there is no right which goes a famous maxim. For this purpose an independent and impartial judiciary with a power of judicial review has been established under the Constitution of India. It is the custodian of the rights of citizens. Besides, in a federal Constitution it plays another significant role of determining the limits of power of the Centre and States government.
The establishment of a formal declaration of fundamental rights under Part III of the Constitution is deemed to be a distinguishing feature of a democratic nation and these rights are exclusively prohibited against the nation's people. The State would not make any laws which abridges or takes away any of the rights of the citizens which guaranteed in the Part III of the Constitution. If it passes such a law then court shall be declared unconstitutional. However, only declaration of certain fundamental rights would not be used if there is no machinery for their enforcement. Therefore, the Constitution has given the power on Hon'ble Supreme Court to grant most effective remedies in the nature of writs such as Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari whenever these rights are violated then these would be applied. However, it must be clearly understood that fundamental rights are not absolute rights but they are subject to certain restrictions. Thus, our Constitution tries to strike a balance between the social interests and individual liberty. The idea of establishing a Bill of right which has been derived from the American Constitution. However, the guarantee of individual rights in our Constitution has been very carefully balanced with the requirement for security of the nation itself.
The Constitution Bench in Chandra Kumar v Union of India held that the power of the High Court in articles 226 and 227 of the Constitution and Supreme Court in article 32 of the Constitution which is a part of the basic structure of our Constitution. The Constitution Bench also laid down that various Tribunals which are created in articles 323A and 323B of the Constitution and it will function as Court of first instance which are subject to the power of judicial review of the High Court in articles 226 and 227 of the Constitution. Moreover, the Constitution Bench also explained that these Tribunals are empowered even to deal with constitutional questions and they can also examine the vires of statutory legislation except the vires of the legislation which creates the particular Tribunal.
It is the power of courts to pronounce upon the Constitutionality of legislative acts which fall within their common jurisdiction to enforce and the power to refuse to enforce such as they find to be unconstitutional and void. In Kesavananda Bharati v. State of Kerala the court held that Judicial Review is the 'basic features' of the Indian Constitution. Therefore, it would not damaged or destroyed by amending the core spirit of Constitutionalism under article 368 of the Constitution. Again, in L. Chandra Kumar v. Union of India the Supreme Court laid down that the power of judicial review of legislative action as vested in the High Court in article 226 and in the Supreme Court in article 32 is part of the basic structure of the Constitution and cannot be ousted or excluded even by the constitutional amendment.
Constitutional philosophy is essential for a democratic setup and the character and design of Constitution of India which ensures that the powers of the legislature and executive are limited so that the discretion conferred to these organs as they cannot not turn into arbitrariness or arbitrary exercise. The fundamental rights, federal setup of the administration, the basic structure, the amendment procedure all limit of the nation in a particular way. Besides, it would empower the main spirit Constitution as well as it would help to remain its own character. It also protects the nation from dictatorship ruling. Overall, it is the virtuous concept to safeguard and protect the main spirit of constitution and people have to abide the rules of its then nation will be going towards progress.