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CONSTITUTIONALISM IS THE ROAD AHEAD

Updated: Nov 10, 2020

By

Dimpy Verma, III year of LL.B. (Three year course), Saint Wilfred College of Law, Jaipur, Rajasthan


If it has been looked around there are numerous sets of rules or laws that are provided whether it is related to traffic or crime or any other issue. If there is no rule or any law then the world has become full of anarchy, chaos and confusion, imagine everyone begins to do as what they like; someone wanted to take revenge from another person over a pity issue by killing him on the counter of this if there is no availability of proper law or rules to regulate the activities, to govern the system & people, to deter the crimes, etc. then there is no possibility of a dignified and safe life of any person. The utmost things regarded as necessary in any country are constitutionalism and democracy. The unique blend of these two represents the ideal state. It is to be noted that for sure most of the countries possess democracy but few of them have the unique blend of constitutionalism and democracy. Prior discussing on does both constitutionalism significant for an ideal state? Does constitutionalism prevail practically or not? Or any other if any…..the meaning of constitutionalism should be known what does it mean or what not?


Constitutionalism and Democracy

CONSTITUTIONALISM

Before the consideration of constitutionalism, it should be analyzed: does constitution and constitutionalism have similarities or does constitutionalism originate from the constitution? Does both are necessary or only the one is sufficient to make a systematic administrative function in a state?

The constitution has a narrow meaning and constitutionalism is broader in its sense. According to Wade and Phillips, “A constitution means a document having a special legal sanctity which sets out the framework and the principal functions of the organs of the government of a state and declares the principles governing the operation of those organs”. So it is quite clear from the above definition that the constitution is a legal document wherein elaborately how the government performs its functions and also there is an outright power of administrative functions given in it. It is a legal document which incorporates several legal rules which led emphasis on how the government should be governed. It is a part or can be said that a component of constitutionalism whereas constitutionalism is a broad term. Definition by Don E. Fehrenbacher, “Constitutionalism is a compound of ideas, attitudes and patterns of behaviour elaborating the principle that the authority of government derives from and is limited by a body of fundamental law”. From the definition, it implies that it is an ideology which explains the ways of life values, beliefs and ideas of the people of the nation. Furthermore, constitutionalism contemplates goals and constitution push for the goals to be achieved. One of the aspects of constitutionalism is that it can be possible wherein there is no written constitution. The U.K. can be the paradigm of this aspect. Interestingly, where written constitution or constitution provides there doesn't need to be constitutionalism effectively prevails like in Germany there had been a constitution but there is no presence of constitutionalism. Often constitutionalism is regarded as a synonym for the limited government the reason behind this is that it calls for tightening the screws on check for arbitrary actions not performed by the government; there should be rule of law and government have to governed through rules, laws and procedures that are the ideology insisted by the constitutionalism. The very fact is that constitution is a means to attain constitutionalism; it is no obligation to have a written constitution. It strives to put two limitations on government- firstly, powers prescribed which push for which sort of powers government may be used or may not to be used and secondly, procedures prescribed insist on how may be used the powers in a prescribed procedure.

At last, to sum up it can be said that true constitutionalism imparts no arbitrary use of powers by government and it led emphasis on rule of law which envisaged that there should be equality among persons in every aspect. Also, it led to a focus on the division of powers instead of concentration of powers. It implies acceptance of plurality in the society and prohibits authoritative leadership & dictatorship and minimum constraints on freedom of an individual.

DEMOCRACY

The most significant feature of a nation is a democracy. The term democracy is derived from the word demokratia which coined from the ‘demos’ implies ‘people’ and ‘Kratos’ implies ‘rule’ in the middle of the 5th century BCE to denote the political systems then existing in some Greek city-states, notably Athens. When the word democracy likely comes in a mind the one simplest form of definition reminds us of Abraham Lincoln “DEMOCRACY IS THE GOVERNMENT OF THE PEOPLE, BY THE PEOPLE, FOR THE PEOPLE, SHALL NOT PERISH FROM THE EARTH”. From the language of the definition, it strikes a note that democracy is a form of government which is elected by the people with the right to choose their representative for them. The definition is in its narrower sense it only focused on the aspect of people being elected rather than illustrating what features it comprises. The features or characteristics in a democracy are – legal equality, political freedom and rule of law. Legal equality and rule of law imply here that there should be equality among everyone, no one is above the law and everyone should be treated equally whereas political freedom implies that people should have the right to choose their representative.

Theoretically, there are many nations’ claims for having a democratic government but the harsh reality is that there was no democracy at all like- Pakistan claimed for having a democratic government but there is nothing like democracy the whole power in actual vests in the military. But in India, the scenario is quite different. It is one of the democratic countries in the world along with the features which described earlier also effectively present to maintain the democracy in the country.

Relationship between constitutionalism and democracy

If it has been seen into these terms (constitutionalism and democracy) it looks like there is a resemblance between them because they assert on the rule of law to endure checks and balances on the government whether it performs functions according to the constitution. However, the relationship between constitutionalism and democracy seemingly regarded as dialectic, also it is not wrong to contend that both propitiously depend on each other to govern the government. Constitutionalism provides the principle by which democracy can be achieved. The principles which constitutionalism carry out such as – equality before the law, fundamental human rights, limitation in the exercise of functions, popular sovereignty, judicial independence, etc.. Democracy will remain only in the faith of article and fall from grace if there is no supremacy of law above anyone or anything because it clings to constitutionalism. The reason behind this is that constitutionalism provides fundamental rights such as the right to live a dignified life, right to equality, right against exploitation, right to speech and expression, etc which are the essence of democracy.

Theoretically, we adapt that there should be constitutionalism rather than the written constitution and there should be a democratic form of government where equals shall be treated equally and so on but practically the things are just opposite of that there must be a written constitution rather than infallible constitutionalism. In respect of India, who is one of the democratic countries in the world also has characteristics of constitutionalism like the flexible constitution, fundamental rights, separation of powers, an independent judiciary, sovereignty, etc.


With time, judicial pronouncements and decisions adhere to the importance of constitutionalism and democracy.