While exploring the world of political theory, two terms often come up: Constitution and Constitutionalism. The terms constitution and constitutionalism refer to the legal system of a country. Though they may sound similar and are often used interchangeably, they are fundamentally distinct concepts. Here, we will explore the difference between Constitution and Constitutionalism in detail and briefly understand each term. By the end of this read, you'll have comprehensive knowledge and be able to effectively distinguish between the two terms.
A constitution is a set of fundamental rules that determine how a country or state is run. Almost all constitutions are “codified”, which simply means they are written down clearly in a specific document called “the constitution”. However in some countries, such as Israel, New Zealand and the United Kingdom, “uncodified” constitutions exist, which can’t be found written down neatly in one particular place. The Constitution of India is the longest-written constitution of any sovereign nation in the world. The original text of the Constitution contained 395 articles in 22 parts and 8 schedules.
India, also known as Bharat, is a Union of States. It is a Sovereign Socialist Secular Democratic Republic with a parliamentary system of government. The Republic is governed in terms of the Constitution of India, which was adopted by the Constituent Assembly on 26th November 1949 and came into force on 26th January 1950.
The Constitution provides for a Parliamentary form of government which is federal in structure with certain unitary features. The constitutional head of the Executive of the Union is the President. As per Article 79 of the Constitution of India, the council of the
Parliament of the Union consists of the President and two Houses known as the Council of States (Rajya Sabha) and the House of the People (Lok Sabha).
Article 74(1) of the Constitution stipulates the existence of a Council of Ministers with the Prime Minister at its head to aid and advise the President, who exercises their functions by such advice. Consequently, the actual executive power is vested in the Council of Ministers with the Prime Minister at its forefront.
Sources of the Indian Constitution refer to the various documents, historical events, legal frameworks, and precedents that have contributed to the formation and development of the Constitution of India. These sources include historical documents such as the Government of India Act of 1935, which served as a blueprint for the Indian Constitution. It also includes various reports and recommendations of constitutional committees like the Nehru Report and the Cabinet Mission Plan. Additionally, the Constitution draws inspiration from international sources such as the Constitutions of other countries, principles of natural justice, and the Universal Declaration of Human Rights. Judicial decisions, parliamentary debates, and conventions also play a significant role in shaping the interpretation and evolution of the Indian Constitution.
Constitutionalism is an ideology that states that government authority is derived from the people and should be limited by a constitution specifying what the government can and cannot do. Essentially, it puts restrictions on the powers of government.
Constitutionalism recognizes the need for a government with powers, but at the same time, it insists that limitations be placed on those powers. The antithesis of constitutionalism is despotism. Consequently, to safeguard the fundamental freedom of the individual and uphold their dignity and identity, the Constitution should be steeped in Constitutionalism.
According to Dr. Basu’s writings, Constitution and Constitutionalism are based on Democratic Principles, which include:
1. Protection of Fundamental Rights: The rights of the individual are placed at the highest pedestal for constitutionalism to thrive. In India, these rights are given due importance by being engraved in Part III of the Constitution. The enforcement of these rights is ensured by the Constitutional Courts, i.e., the Supreme Court and the High Courts.
2. Separation of Powers: This principle means avoiding the concentration of power in single hands for the smooth functioning of the government.
3. Diffusion of Powers: This principle necessitates different independent centers of decision-making, such as the creation of the Panchayat and the Municipality.
4. Principle of Legality: This principle requires the courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to fundamental rights. Legalism means a commitment to these principles rather than to a strict interpretation of the text.
5. Limits and Aspirations: The Constitution and Constitutionalism embody aspirations to social justice, brotherhood, and human dignity.
The concept of constitutionalism has existed and grown in all functioning democracies. The continued functionality of India’s Constitution was seen as a remarkable achievement, considering the nation’s vast diversity and socio-economic challenges. Professor Ackerman and many others have expressed surprise at how the Constitution has been working reasonably well since January 1950, despite the country's immense diversity, poverty, ignorance, and other negative factors.
However, over the years, Governments have learned to use governmental tools for their benefit instead of benefitting the citizens. By giving backdoor entries to corporate interests in policy-making, the government has corrupted the policy-making process, whose primary aim is the welfare of the larger population. The very document, i.e. the constitution, that was adopted to ensure the rights of individuals is being used to oppress them.
The problem is that the Constitution cannot interpret itself and has to be interpreted by the men who hold power. Checks and balances have been diluted to a point where their importance is merely academic. The criminalization and influence of money power have corrupted the system. The government's disregard for constitutionalism is extremely dangerous, and this trend needs to be stopped.
The concept of constitutionalism has been recognised by the Supreme Court in Rameshwar Prasad v. Union of India. The Court stated, “The constitutionalism or constitutional system of Government abhors absolutism – it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.” Constitutionalism is about limits and aspirations.
In IR Coelho v. State of Tamil Nadu, the Court held that Constitutionalism is a legal principle that requires control over the exercise of governmental power to ensure that the democratic principles on which the government is formed shall not be destroyed.
R.C. Poudyal vs Union Of India(1993) Case: In this case, the Supreme Court emphasized a fundamental principle: the mere existence of a Constitution is Insufficient as it does not automatically guarantee constitutionalism in India or a constitutional culture. It’s the political maturity and traditions of the people that breathe life into a constitution, giving it meaning and purpose.
Chandrachud, CJ, in Minerva Mills case observed, – “The Constitution is a precious heritage and, therefore, you cannot destroy its identity”.
"A country may have the Constitution but not necessarily constitutionalism. " Simply having a constitution does not guarantee constitutionalism. For example, even Nazi Germany had a constitution, but it did not adhere to the principles of constitutionalism, whether in a positive or negative sense.
As stated by the Supreme Court in S.R. Chaudhuri v. State of Punjab (2001), the mere existence of a Constitution, by itself, does not ensure constitutionalism. What matters is the political traditions, spirit, and determination of the people to uphold their constitutional principles through their chosen political system.
To uphold constitutionalism, priority must be given to democratic policies and individual rights. Attacks on individual rights, such as restrictions on freedom of speech and expression, and privacy infringements through laws governing surveillance and sedition, undermine constitutionalism.
Constitutionalism is far more important than having a written constitution. With some exceptions, most countries have constitutions, but it does not mean that they practice constitutionalism. Some of the basic principles developed over time that embody the concept of constitutionalism include separation of powers, responsible and accountable government, popular sovereignty, independent judiciary, individual rights, and rule of law. The philosophy of constitutionalism is based on the idea that power should not be concentrated in one place. This is typically achieved through a system of checks and balances, where the different branches of government—legislature, executive, and judiciary—check and limit each other's powers to maintain a balance. This system
ensures that no single entity can dominate the others, creating an environment where rights and liberties are protected and upheld.
Constitutionalism is a captivating topic that is fundamental to societies worldwide. It represents a set of principles according to which a state should be governed. This concept is an essential part of our socio-political landscape, as it shapes the way societies are organized and how individuals interact within them.
Understanding the Constitution and constitutionalism is crucial for law students as it forms a significant part of the syllabus and provides invaluable insights into the functioning of our government and the guiding principles of its actions. It is essential for comprehending the framework of the government and the rights and responsibilities of its citizens.
Engaging with the Constitution and constitutionalism will mold students into legal scholars, polishing their skills to navigate the complex and rapidly changing legal environment successfully. The political texture of modern India is firmly established and secured by the Indian Constitution, signifying its vital role in shaping our society.
It is crucial to remember the following: Constitutionalism refers to the behaviour that facilitates improved governance of a country and limits the excessive use of power within that country. It operates about the people and the well-being of society. The concepts of Constitution and Constitutionalism are closely related; one cannot survive without the other. However, they differ in their perspectives. The first one defines the written rules and regulations, while the second one emphasises more than a simple written document.
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