Constitutionalism

Constitutionalism 

• One needs to know the ‘Constitutionalism’ and “Constitutional Law” before understanding the philosophy of Constitution of India. Having a Constitution itself is not Constitutionalism.

• Even a dictator could create a rule-book calling it Constitution, which never meant that such a dictator had any faith in Constitutionalism. 
• Recognizing the need for governance, the Constitutionalism equally emphasizes the necessity of restricting those powers.
• The Constitutional law means the rule, which regulates the structure of the principal organs of the Government and their relationship to each other, and determines their principal functions.
• The rules consist both of legal rules enacted or accepted as binding by all who are concerned in Government. 
• All the Constitutions are the heirs of the past as well as the testators of the future.
• Constitution of Indian Republic is not the product of a political revolution but of the research and deliberations of a body of eminent representatives of the people who sought to improve the existing system of administration.
• Thus the Constitutionalism, in brief, is specific limitations on general governmental powers to prevent exercise of arbitrary decision-making.
• Unlimited powers concentrated in a few hands at the helm of affairs and their exercise would jeopardize the freedom of the people.
• These powers have to be checked and balanced with equally powerful alternatives in a system, where it will be nearly impossible for dictators to emerge.
• In one word ‘Doctrine of Limited Governance’ is the Constitutionalism, which is supposed to reflect in the Constitutional Law of a democratic state.
• Constitution of India is the Constitutional Law incorporating the Constitutionalism
• The listed fundamental rights and guaranteed remedies, creation of judiciary as an impartial arbiter with all independent powers besides broad based legislative check on the executive are the reflections of such constitutionalism.
• From these essential characters the doctrines of judicial review, rule of law, separation of powers, universal franchise, transparent executive, fundamental right to equality and quality of life emerged and consolidated.

At the same time, the rule-book has a responsibility to check anarchy and possibility of people misusing freedom to resort to violent means of overturning the constitutionally governing institutions.That responsibility is undercurrent in the reasonable restrictions placed on the exercise of fundamental rights of the people. The founding fathers of the Constitution made restrictions specific while the rights appear in general terms, paving a way for independent judiciary to expand the scope of freedoms and reading emerging rights into the sacred statements of rights under fundamental rights chapter. At the same time specification of restrictions operate as powerful restraints on the powers of the rulers.

The right as the individual power in the hands of people and authority as the ruling power in the hands of institutions cannot go arbitrary and anarchic undermining the democratic peace. The democratic constitutionalism is three pronged in Indian Constitution, one- guaranteeing freedoms, two- restricting governing institutions, three- empowering the independent arbiter of judiciary with power to review the executive and legislative orders affecting the interests of people in general or afflicting basic norms of rule of law.

Basic Philosophy of Indian Constitution

Mr. Justice H. R. Khanna in his ‘Making of Constitution said: “The framing of a Constitution calls for the highest statecraft. Those entrusted with it have to realize the practical needs of the government and have, at the same time, to keep in view the ideals, which have inspired the nation. They have to be men of vision, yet they cannot forget the grass roots”.

 A Constitution at the same time has to be a living thing, living not for one or two generations but for succeeding generations of men and women. It is for that reason the provisions of the Constitution are couched in general terms, for the great generalities the Constitution have a content and significance that very from age to age and have, at the same time transcendental continuity about them.

A constitution states, or ought to state, not the rules of the passing hour, but the principles for an expanding future.The Indian Constitution is based on the philosophy of evolving an egalitarian society free from fear and bias based on promoting individual freedom in shaping the government of their choice. The whole foundation of constitutional democracy is building a system of governance in systematic machinery functioning automatically on the wheels of norms and regulations but not on individual whims and fancies. It is easy to dream such a system of rule of law than framing a mechanism for it.

The Indian Constitution is a marathon effort to translate philosophical rule of law into practical set up divided into three significant estates checking each other exercising parallel sovereignty and non-egoistic supremacy in their own way. Apart from excellent separation of powers to avoid the absolute concentration, the Constitution of India envisages a distinct distribution of powers between two major levels of Governments- central and provincial with a fair scope for a third tier – the local bodies. However, the operation of the system came in contrast with men and their manipulations leading to different opinions and indifferent options. Whatever may be the consequential aberrations, the system of rule of law is perfectly reflected in framing of the Constitutional norms codifying the best governing mechanisms tested and trusted in various democratic societies world over.

Functions of the Constitution 
The Constitution is a political structure, whether it is written or not and followed or not. They have several functions.
a) Expression of Ideology: it reflects the ideology and philosophy of a nation state.
b) Expression of Basic Law: Constitutions present basic laws which could be modified or replaced through a process called extra ordinary procedure of amendment. There is a special law also which usually focus upon the rights of the citizens, for instance, rights concerning language, speech, religion, assembly, the press, property and so on.
c) Organizational frame work: It provides organizational framework for the governments. It defines the functions legislature, executive and judiciary, their inter-relationship, restrictions on their authority etc.
d) Levels of Government: Constitution generally explains the levels of different organs of the Government. Whether it is federal, con-federal or unitary will be described by the Constitution. They delineate the power levels of national and provincial governments.
e) Amendment provision: As it would not be possible to foretell all possibilities in future with great degree of accuracy, there must be sufficient provisions for amendment of the Constitution. It should contain a set of directions for its own modifications. The system might collapse if it lacks in scope for modification. Inherent capacity to change according to changing times and needs help any system to survive and improve.
Soviet Constitution was mostly an expression of ideology and was less an expression of organizational set up. The American Constitution is more an expression of governmental organization and a guideline for the power relationship of the regime than an expression of the philosophy of the regime.