CONSTITUTIONALISM AND TRANSFORMATIVE CONSTITUTIONALISM

INTRODUCTION

We all are aware of the term “constitution”, it is the supreme law of the land, set of rules and regulation to preside over a country and many other definitions can be found. Constitution can be written as well as unwritten. India has a written constitution whereas U.K is an example of unwritten constitution. But most of us are unaware of the term “constitutionalism”. Constitutionalism is a philosophy or ideology. In other words Constitutionalism is a goal and constitution is a mean to achieve it. Constitutionalism has become an important element of the political life in any state that cannot be neglected any more. It performs its functions of prevention and regulation of conflicts.

CONSTITUTIONALISM

It is an idea that Government should be limited in its power and that its authority depends on its observation of those limitations. Constitution is merely a legal and moral framework which is setting out or providing these limitations. According to constitutionalism, the constitution not merely confers powers on the various organs of the Government i.e. Executive, Legislative and Judiciary but also seek to restrain these powers. A country may have constitution but not necessarily constitutionalism.

In other words, Constitutionalism is against putting all the power in a single organ but prefers limitations on these powers. Therefore, constitutionalism is also called “Limited Government” and these limitations on power are provided by none other than “constitution”.

 Constitutionalism is just opposite to arbitrary powers. Constitutionalism supports the need of government, but at the same time insist that some limitations must be there on those powers. The main motive of “Constitutionalism” is to preserve or protect fundamental freedom of the individuals and to maintain its dignity and pressure its personality. So, pervade constitutionalism i.e. it should have some set of restrain or limitation on the power of conferred by it on governmental organs.

In contemporary liberal democracies, the ideas of constitution and constitutionalism are almost fused, that is constitutions reflect the principles of constitutionalism. And constitution-making is a process of building political consensus around constitutionalism, putting it in the context of the country and the historical moment, adapting its principles to the needs of functional institutions and peaceful coexistence among the different segments constituting the specific social fabric.

ELEMENTS OF CONSTITUTIONALISM

Written restraints in the constitution are not merely enough that means a tyrant will not become a kind ruler just because some book says so. Along with the restraints in the constitution there have to be some set of frameworks for institutional arrangements. According to Louis Henkin, there are certain elements of constitutionalism which are as follows:

  1. Rule of Law: According to Dicey, it means the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may be punished for a breach of law, but he can be punished for nothing else.
  2. Separation of Power: The doctrine of separation of power emphasizes the mutual exclusiveness of the three organs of the government i.e. legislature, executive and judiciary. So, one organ of government should not interfere with any other organ or one organ cannot do the function of other organ.
  3. Judicial review: The Supreme Court has power to declare void the laws passed by the parliament and the action taken by the executive if they violate any provision of the constitution.
  4. Independent Judiciary: The judiciary should be independent in its judgement and no interference of any kind .i.e. from legislature or executive should be there.
  5. Preamble: An introduction to the constitution which lays down the fundamental principle on which the constitution is based.

Even though there is no exhausting list of elements by which the presence of constitutionalism can be tested, but any feature which limits the power of the government and helps in the welfare of its people can be considered a point for constitutionalism.

CONSTITUTIONALISM IN INDIA

India is a democratic country with a written constitution. Rule of law is dominant Government of the country and all the administrative functionaries are expected to follow it. Talking about separation of power, India didn’t follow it strictly. India prefers the concept of checks and balance that means interdependency. The work of each organ has to be performed by itself but the other organ can keep a check on the work. So, the concept of separation of power is now followed on a strict basis

Preamble is the soul of the constitution. It contains basic fundamental principals which forms the tombstone of the constitution. Preamble clearly states that India to be a secular state that means it has no state, religion. It means every citizen has the right to protest and follow any religion he/she wants

Doctrine of judicial review is not clearly mentioned in the constitution of India it can be inferred from article 13(2) of constitution of India. Constitutionalism is an ideology which states the function of government and the functions should be performed according to the provisions stated in the constitution. It explains the purpose which a government should have, the power of the government, relationship between a state and society and also explains the boundation of the government.

There are some other features present in the constitution which make the country lean towards constitutionalism. Separation of power between state and centre, presence of emergency provisions and fundamental rights are some essential features which limit the power of the state and promote public welfare.

CONSTITUTIONALISM IN U.S.A

Most of the countries have written constitution, In U.S.A the case William Marbury v. James Madison was the first case in the United States Supreme Court which was sent for judicial review. This case defines the limits and power of executive and judicial powers of the American Government.

After the judgement of this case, in U.S.A it is the duty of every judge to declare any such enactment void which is against the U.S.A Government. United States has also three separate organs in state like India. In US constitution, Senate and Congress have the power of law making, US President have the power to exercise his or her veto power on the bills passed by the congress.

Courts have the power to check the constitutionality of any bill that is passed, if hey feel that any bill which is against the US Constitution, it can declare it null and void. Thus Rule of Law is one of the essential elements of constitutionalism and states that no one is above law.

CONSTITUTIONALISM IN U.K

 U.N have both a written and unwritten constitution, since then no attempt has been made to compile it in a single document, it is also called an uncodified document.

Judiciary of the Unites States has an essential function of upholding the rule of law, human rights and democracy. Parliament can use the power of crown to enact law. The British Constitution is  derived from various sources. U.K Constitution’s flexibility can be seen from large number of reforms made in constitution since 1997 like the abolition of hereditary peers in the House of Lords, codified rights of individuals in the Human Rights Act.

TRANSFORMATIVE CONSTITUTIONALISM

We live in a dynamic world and it changes from time to time. So in order to keep up with it society also need to make certain changes. These changes need to be made in the constitution of the country. The Constitution is a document committed to social transformation. In other words the constitution needs transformation in order to keep up with the pace of the society.  The concept of transformative constitutionalism is not new and dates back to 1998 when the term “Transformative Constitutionalism” was coined. It was laid down in South African journal on Human rights by Karl Klare. Klare, a US scholar, argued that the South African constitution, in the context of the South African post apartheid project, had to be understood fundamentally changed state and society by non violent means. Transformative Constitutionalism has since become a widely used label.

As happens with successful attempts, transformative constitutionalism has assumed many meanings today- and even more so as it has become a concept of comparative law. One of the most known meaning is “If there is a concept that embraces the ideal of constitutions as society’s new moral and political foundation, this concept is transformative constitutionalism.” Constitution in many countries including Europe and the US serve to establish a new political and moral foundation for their societies, especially when they emerge out of the victory of a revolutionary movement such as the early French constitution or the US constitution are adopted in response to past horrors such as in Germany and many Eastern European states.

TRANSFORMATIVE CONSTITUTIONALISM IN INDIA

In India also, the transformative constitutionalism was practiced way back in 1933. In 1933, British organised communal awards in which separate representations have to be made in Hindu, Muslim, Christians etc. The depressed classes were also assigned a number of seats but on a condition that only the depressed classes can vote for them. M.K Gandhi protested for this by seating on a hunger strike which ended with a pact between M.K Gandhi and B.R Ambedkar known as Poona Pact. After the pact, some norms were eased. M.K Gandhi saved the nation that time but he didn’t know what would happen in the future, the reservation system would merely become a way to increase vote bank.

Similarly, we have seen some major changes like abolition of article 370 and 35(a). These changes may have put a burden on Pakistan and Kashmir, but was radically required by the grave situation. Legalisation of LGBTQ committee is also one of the examples of transformative constitutionalism. This is how dynamism of constitution helps in development of a country as well as its people.

Our constitution is 73 years old, but it is the duty of the legal fraternity or the legislature to keep it up with the pace of the society. We all are aware of the dispute that takes place after every year between India-China, which is also needed to be resolved. We have seen a number of changes in the constitution since 1950, but a whole lot more is in queue.

Author: Arushi Negi.

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