Constitutionalism is a political philosophy based on idea that authority is derived from the people and must be exercised in a non arbitrary manner.
- "Power corrupts and absolute power corrupts absolutely."
- Unlimited powers may lead to an authoritarian, oppressive government which jeoparadizes the freedom of the people.
CONSTITUTION- RESULT OF CONSTITUTIONALISM
Some scholars believe that principles of constitutionalism may be upheld in a State where the constitution may be either written or unwritten, while some scholars are of the view that a written constitution is a necessary feature in upholding the principles of constitutionalism.
The idea generally inculcated in a constitution, while upholding the noble principles of constitutionalism are:
- Rule of law
- Free and fair elections
- Transparent, democratic and answerable government
- Rights of the people
- Independence of judiciary
- Powers of judicial review
- Federal government
The necessity of a written constitution can be understood for a simple reason that the powers and functions of legislature, executive and judiciary are demarcated and none of them cross it, so as to function within their own restricted limits, while striking a happy balance between each other.
The Indian Supreme Court in IR Coelho (Dead) By LR vs State of Tamil Nadu & ors. held, the principle of constitutionalism is now a legal principle which requires control over the exercise of governmental power to ensure that it does not destroy the democratic principles.
Purpose of a democratic setup:
If the principles of constitutionalism i.e. limited government are present while ensuring the welfare of the people, then there is no need for a constitution even in a dictatorship. But the chances are less due to centralization of powers and lack of spiritual integrity, therefore, a democratic set up becomes the need of the hour.
But having a democratic setup is not enough unless there is judicial independence.
In Marbury versus Madison, a law made by Congress was declared void in judicial review. It is to be understood that the law was made according to the constitution and hence did comply with the "written constitution".
Judicial independence lead to nullifying a law, though made through constitutional means because it did not comply with the principles of "constitutionalism."
Similarly, the case of ADM Jabalpur in India, where a law was made for preventive detention through procedure established by law, thus complied with the "written constitution," i.e. the wordings of Article 21. The judgement of ADM Jabalpur upheld that law as it complied with constitutional norms, howsoever unjust the law may have looked.
In this case there was no lack of judicial independence, but "justness and reasonableness" took a back-foot.
Therefore, not just a written constitution and independence of judiciary would uphold constitutionalism, but the quality of judges also matter. The judges must not just solve the problem in hand, but must also be futuristic and progressive.
Again, free and fair elections are a must so that people may get good political leaders which act not just according to constitution but must also keep in mind the implied limitations which their constitution suggests, and if the constitution is of such a nature that it lacks the fundamentals of constitutionalism, they must uphold such principles, act through their spiritual conscience while keeping in mind the welfare of the people.
It must also be noted, that corrupt and ill minded politicians may amend the constitution or the elected government i.e. executive may make such orders so to trespass the principle of constitutionalism, but the judiciary must act proactively while keeping in mind their own implied limitations to declare such acts as unconstitutional.
Therefore, spiritual integrity and conscience are the drivers of constitutionalism. The rule of law must be upheld, and if such law is violative of principles of justness, reasonableness and fairness, it must be either amended or repealed by the legislature or be interpreted or struck down partially or wholly by the judiciary and the modified law be then upheld. All of this must be done, while keeping the soul of constitutionalism i.e. limited powers, spiritual integrity and welfare of people alive.
Could not be more blessed ma'amReplyDelete