Vineet Sharma
“Every nation has a message to deliver, a mission to fulfil, a destiny to reach”. These words by great Swami Vivekananda were very well understood by the drafting committee of the Indian constitution. The result of which can be seen in the “Preamble” of Indian constitution. The inclusion of the words like Justice, liberty, equality and fraternity very well contribute to the idea of making India a Sovereign, Socialist, secular and democratic republic. Least we know that there were number of debates in the constituent assembly so as to finally decide what should the exact words written in the preamble of Indian constitution because it not only resembles the will of the people of India but it also defines India as a true nation and thus laying the foundation of “Indian constitutionalism”.
The Constituent Assembly sat for the first time on 9th December 1946. Over the next 2 years and 11 months, the Assembly sat for a total of 166 days to frame the Indian Constitution. The final session of the Constituent Assembly took place on 24th January 1950. It can be construed from the analysis of constituent assembly debates that the founding fathers of the world’s lengthiest constitution left no stone unturned in order to conceptualize the idea of the rule of law and equality in the constitution which forms the basic nature of the constitution. Constitutionalism is built on a simple idea, that the government is organised by people and operated on behalf of the people, but is subject to a series of restraints which attempt to ensure that the power which is needed for such Governance is not abused by Government. This is the broadest definition one can give to the word constitutionalism especially in the Indian perspective. However, the idea of Indian constitutionalism incorporated a wide variety of smaller concepts from fundamental rights to independent judiciary. The idea of constitutionalism is to create a balance between the powers of the Government and rights of the people of India as in a democratic setup like India which owes its existence to the common will of the people as mentioned in the very first line of the preamble with words “we the people of India” it is very important to maintain a balance between the ever-rising conflict of interest between the government and general public. Speaking in a more elaborative manner one can say that Constitutionalism implies concepts like Popular sovereignty, the supremacy of the Constitution and Rule of Law, Political Democracy, Representative Limited Government, Separation of Power, An Independent Judiciary. All these elements restrict the power of the State in a particular way.
Modern Constitutionalism requires limits on the power of the government along with the adherence to the Rule of Law and protection of Fundamental Rights. However, there are certain aspects that the constitution, government and the judiciary need to comply with in order to be at par with the constitutionalism. Trying on the anvil of the specific Indian diaspora the laws must make way in the Indian society respecting and adhering the concepts plurality and diversity, failing to do so will defeat the basic nature of constitutionalism.
“Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of people that give meaning to a Constitution which otherwise would merely embody the political hopes and ideals”. For constitutionalism, a constitution needs to have some qualities which would either restrain the Government from acting against its citizens or compel it to act for securing a dignified life to each one of them. Ideas of constitutionalism in India: the above stated ideas of constitutionalism have been very well incorporated in Indian constitution with the inclusion of specific articles on fundamental rights, directive principles of state policy, separation of powers, independent judiciary etc. Article 21 of the Indian Constitution provides that life and liberty cannot be deprived except by a procedure established by law. This means that there has to be a legal justification for the deprivation of life and liberty of a person. The requirement of law for deprivation acts as a limitation on the arbitrary exercise power of the legislature well as the executive. The principle of constitutionalism is based on the principle of legality which requires the Courts to interpret the legislations on the presumption that the Parliament would not intend to legislate contrary to fundamental rights.
The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes. For instance, no law can be made by the state which treats two people who are situated in equal circumstance unequally since it will amount to a violation of Article 14 of the Indian Constitution. Similarly, Freedom of Speech and expression under Article 19(1)(a) can be restricted only on the ground mentioned in Article 19(2) only i.e. It can be restricted only if the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, or public order, decency or morality is threatened or if the speech is in relation to contempt of court, defamation or incitement to an offence. The freedom of speech cannot be restricted by the state on any other grounds. Thus, these restrictions on speech act as limits on the power of the state in the sense that it delineates the extent to which the state can curb freedom of speech.
Even the Supreme court of India has said that Public power, including constitutional power, must never be exercised arbitrarily or malafide, and ordinarily guidelines for fair and equal execution are guarantees of valid use of power. The power being of the greatest moment, cannot be a law unto itself but it must be informed by the finer canons of constitutionalism.
These requirements of Law and of Due process restrict the power of the state. Any violation of these principles would enable the courts to strike down the law. The court has also said that 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 and these democratic principles include protection of Fundamental Rights.
Apart from the concept of fundamental rights, the expressed articles written about the separation of powers of the legislature and the judiciary ensures the independence of judiciary which is of utmost importance for a healthy democracy. The concept of a welfare state that works for the betterment of its citizens can be definitely seen in the Indian constitution however in this ever-changing societal setup, courts have to play a significant in order to upheld the greatness of Indian constitutionalism and to check the ever-increasing challenges. There can be no better way to conclude this article by accepting the fact that the word constitutionalism is evolutionary in nature and it’s a matter of great pride for all of us that the Indian Constitution from the very first day has been upholding its principles and its flexible nature has helped Indian legislature and judiciary to evolve it according to the needs of the country. Now it’s the responsibility of the citizens of the country to uphold the most valuable words of the entire constitution “we the people of India”.
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