Constitutionalism

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Constitutionalism-A Perspective

Varun ChhaChhar*& Arun Singh Negi**

I. Introduction

In some minimal sense of the term, a "constitution" consists of a set of rules or normscreating, structuring and defining the limits of the government, power and authority.Our constitution, a unique document, is not a mere pedantic legal text; it embodieshuman values, cherished principles, and spiritual norms. It uphold the dignity of manBachan Singh v. State of Punjab1. Constitutionalism is the idea, often associated withthe political theories of John Locke and the "founders" of the American republic, thatgovernment can and should be legally limited in its powers, and that its authoritydepends on its observing these limitations. Constitutionalism is the limitation ofgovernment by law, as prescribed by a constitution. Constitutionalism implies also abalance between the power of the government on the one hand and the right ofindividuals on the other.

Constitutionalism is a system of government based on the supremacy of theconstitution, democratic government, separation of powers, checks and balances,judicial independence and protection of individual rights; the rule of law describes acondition of government in which the supremacy of democratically made laws, equalitybefore law, procedural justice and effective constraints on government arbitrariness allexisting and defining the limits of, government power or authority. Thus Charles H.McIIawain has written that the essential quality of constitutionalism is that“it is a legallimitation on government; it is the antithesis of arbitrary rule”. Another eminent scholarof constitutional law, Howard Jay Graham, has observed that “constitutionalism... is the art and the process of assimilating and converting statute and precedent, ideals andaspirations, into the forms and the Rule of Law—into a Fundamental and SupremeLaw”.We can now return to the task of defining constitutionalism. Like liberty or democracy,"constitutionalism" is also a fuzzy word, and different people have different ideas aboutwhat constitutionalism means. Giovanni Sartori defines liberal constitutionalism asconstituting the following elements: (1) there is a higher law, either written orunwritten, called constitution; (2) there is judicial review; (3) there is an independentjudiciary comprised of independent judges dedicated to legal reasoning; (4) possibly,there is due process of law; and, most basically, (5) there is a binding procedureestablishing the method of law-making which remains an effective brake on the bare-

*Ph.D Scholar & Advocate Delhi High Court .**Indian Patent Agent & Advocate Delhi High Court.1 A.I.R.1982.S.C.1325

Electronic copy available at: http://ssrn.com/abstract=1527888

will conception of law 2.Sartori's definition emphasizes the "rule of law" side of liberalconstitutionalism.

II. The Concept

According to the theorist a further important feature of constitutionalism is that the ruleimposing limit upon the governments power must be in some way be entrenched eitherby law or by the way of constitutional creation. In other words those whose powers areconstitutionally limited, i.e. the organ of govt. must not be legally entitled to change orexpunge those limit at their pleasure. The central element of the concept ofconstitutionalism is that in political society government officials are not free to doanything they please in any manner they choose; they are bound to observe both thelimitations on power and the procedures which are set out in the supreme,constitutional law of the community. It may therefore be said that the touchstone ofconstitutionalism is rule of law3.

Now if we need to discuss the concept of constitutionalism it is very important todiscuss John Austin theory of law, it say ‘law is a command of sovereign’4.He furtherdefine sovereign as political superior. He categorised the law given by superior toinferior. He called it ‘‘positive morality’’.He called it positive because it was given byman to man and it was definite and certain.He called it ‘morality’ because it was backed by legal sanction.Austin’s view of sanction in this concept is correlative with command.The relation of command, sanction and duty can be better explained through anexample:“Do not drive fastotherwise you will be challenged”.“Do not drive fast” is a command of as it is an authoritative expression of desire.“Otherwise you will be challenged” is a duty as it signified the obnoxiousness/liabilityto the evil.“Challan”is a sanction as it is the evil itself.

Now as we discussed John Austin his central idea revolves around ‘sovereign’.This wordhas a significance in terms of an idea of constitutionalism because sovereign is a themeof constitutionalism. Although the conception of austinian theory do not fix into thedemocratic form of government but still the idea behind sovereign has much to do withthe concept of constitutionalism. If you wanted to discuss constitutionalism it isimportant to know the concept of sovereignty. This term sovereignty can be defined as,supreme authority, especially over a state, self government and a politicalindependence of a state. As per the constitution of India We, The People Of India, areSOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC. This interpretation gave awide idea of the sovereignty as we the people signifies the importance of authority of

2 Sartori, 1987, p. 309.3 Entry in the online Stanford Encyclopedia of Philosophy.4 John Austin :Province of Jurisprudence Determined p.9.

people and it now directly says sovereign are the people of the country. It is the peoplewho have adopted, enacted and given to themselves the constitution. The source ofIndian constitution is the people of the India. Parliamentary supremacy is the ideabehind this sovereignty and supreme law is people’s constitution. There are somefeatures that are unique to this Constitution; no previous constitution possessed them,while there are others which, though not peculiar, are still important characteristics:Framed by the people of India, Derived from various sources like we had borrowedfundament rights and supreme court from U.S.A.DPSP from Ireland, Emergencyprovision from Germany, Fundamental duties from Russia, Distribution of legislativepower from Canada and G.O.I Act 1935 besides they borrowed G.O.I Act1935,sovereignty of people, Republican government, secular polity, fundamental rightsand duties, directive principle of the state policy, judicial review, Universal adultfranchise and unique blend of flexibility and rigidity.

Now it is important to discuss the concept of constitutionalism by summarizing theconcept of law given by Kelson5. He says Law is a hierarchy of norms, ultimately everylegal norm in a given legal order deduces its validity from a basic norm, i.e.“Grundnorm”. what is a Grundnorm? It is a structure of hierarchy of norms whichderives their validity from basic norm which he termed as ‘Groundnorm’. Now if we areto analyze constitutionalism as per kelsons view then constitution may be called asgrundnorm as we derive all our laws from it. It is mother act as it also creates rights andduties, wherever there are right and duties, limitations are there to maintain check andbalance. This outset of constitutionalism had source called constitution, which is parentact from where we get each and every rights, duties and statutes for the governanceand rule of law.

For our purpose, constitutionalism (as a descriptive concept) means a system of politicalarrangements in which there is a supreme law (generally called "constitution"), in whichall (particularly the entire system of government) is governed by the supreme law, inwhich only the people's will (as defined through some pre-specified institutionalprocedure, usually through a super-majority voting mechanism) can supersede andchange the supreme law, in which changes can only be made infrequently due to thedifficulty of garnering the requisite popular support, and in which there are separationof power, checks and balances and an independent judiciary dedicated to legalreasoning to safeguard the supremacy of the constitution. To elaborate this point weneed to discuss the statement made by the famous jurist Savigny, founder of thehistorical school of law. He says Law grows with a nation, strengthen with it and dies at

5Kelson’s main works include austrian constitution(1920);The Pure Theory of Law(1934);Revised Theory of Pure Law(1960).

its dissolution. His theory is basically a product of general conciousness of people andmanifestation of their spirit. Generally it is known as Volksgeist(thought of the people)6.

In order to guard against violations against the letter and spirit of the constitution,there needs to be a set of institutional arrangements. Louis Henkin definesconstitutionalism as constituting the following elements: (1) government according tothe constitution; (2) separation of power; (3) sovereignty of the people and democraticgovernment; (4) constitutional review; (5) independent judiciary; (6) limited governmentsubject to a bill of individual rights; (7) controlling the police. In context of Indianconstitutionalism basic principle and elements involved with the constitution of Indiaare Sovereignty, Democratic Republican character ,justice (social, economic andpolitical),Liberty of thought, belief and expression, Equality of status and opportunityand Fraternity assuring the dignity of the individual and the unity and integrity of thenation which have been elaborately discussed in the different parts of the constitution.It has been furtherinterpreted by the Hon’ble supreme court in Keshvanand bharati v. state of kerala7 in majority opinion C.J.Sikri declares that the Basic Structure of theconstitution of India is not amendable and therefore parliament has no power to amendthe basic structure of the constitution. Basic structure is been illustrated as(i)supremacyof the constitution,(ii)republican and democratic form of govt.,(iii)secular character ofthe constitution,(iv)separation of power(v)federal character of the constitution. We canuse the American Constitution to illustrate the two components of constitutionalism.The original 1787 American Constitution was mainly concerned with power constructionand power lodging The American Constitution was amended in 1791 to add the Bill ofRights, which strengthened the rights protection function of the constitution. The initialBill of Rights contained ten clauses: from the First Amendment to the TenthAmendment. Additional Amendments were added throughout the last two centuries toprovide additional protection for individual rights and to improve the power structure ofthe government. Using the American Constitution as an example, we now analyze eachcomponent of the liberal constitution more carefully. Under power construction andpower lodging, the two key concepts are “separation of power”and “checks andbalances”. In the United States, one of the key authorities and the ultimate authoritythat the courts rely on in conducting judicial review is the American Constitution.American courts have the power to invalidate legislative or administrative acts of otherdepartments for violations of the Constitution. American courts also enjoy the exclusiveright to interpret the Constitution. These are generally true both at the federal level andat the state level. That is, similar to federal courts, state courts usually have the powerto interpret state constitutions and review acts of state legislatures and other branchesof the state governments. Because of the power of independent judicial review,American courts, consisting of independent judges dedicated to legal reasoning, become

6Quoted from Savigny’s essay ‘Vom Beruf’.

7 A.I.R 1973.SC1461.

a bulwark against legislative and administrative encroachments on the letter and spiritof the American Constitution. As such, the supremacy of the Constitution is protected8.

III. Ancient Approach

In the Oxford Dictionary the history of our peculiar institutions and ideas, severalmeanings of the word "constitution" are listed as, a body of fundamental principles orestablished precedents according to which a state or other organization isacknowledged to be governed. In 621 BC, a scribe named Draco wrote the laws of thecity-state of Athens; and being quite cruel, this code prescribed the death penalty forany offence. In 594 BC, Solon, the ruler of Athens, created the new SolonianConstitution. It eased the burden of the workers, however it made the ruling class to bedetermined by wealth (plutocracy), rather than by birth (aristocracy). Cleisthenes againreformed the Athenian constitution and set it on a democratic footing in 508 BC. Themost basic definition he used to describe a constitution in general terms was "thearrangement of the offices in a state". In his works Constitution of Athens, Politics, andNicomachean Ethics he explores different constitutions of his day, including those ofAthens, Sparta, and Carthage. He classified both what he regarded as good and badconstitutions, and came to the conclusion that the best constitution was a mixedsystem, including monarchic, aristocratic, and democratic elements. He alsodistinguished between citizens, who had the exclusive opportunity to participate in thestate, and non-citizens and slaves who did not. The Romans first codified theirconstitution in 449 BC as the Twelve Tables. They operated under a series of laws thatwere added from time to time, but Roman law was never reorganised into a single codeuntil the Codex Theodosianus (AD 438); later, in the Eastern Empire the Codex repetitæprælectionis (A.D. 534) was highly influential throughout Europe. This was followed inthe east by the Ecloga of Leo III the Isaurian (740) and the Basilica of Basil I (878).TheEdicts of Ashoka established constitutional principles for that 3rd century BCE Mauryaking's rule in Ancient India. Aristotle (ca 350 BC) was one of the first in recorded historyto make a formal distinction between ordinary law and constitutional law, establishingideas of constitution and constitutionalism, and attempting to classify different forms ofconstitutional government.

Constitutionalism is the limitation of government by law, as prescribed by aconstitution. Constitutionalism implies also a balance between the power of thegovernment on the one hand and the rights of individuals on the other. In the RomanEmpire the word in its Latin form became the technical term for acts of legislation bythe emperor, and from Roman law the Church borrowed it and applied it to religiousregulations for the whole Church or for some particular religious province. It is quiteclear from this statements that Greek attitude towards the fundamental relations ofgovernment to law is to be found in the Politicus or Statesman of Plato, a dialogue

8 What is Constitutionalism?, by Bo LI—Article in Perspectives, Vol. 1, No. 6.Visited website on 13.08.2007,www.oycf.org/Perspectives/6_063000/what_is_constitutionalism.html.

whose central theme is the problem of "constitutionalism"—of all Plato's dialogues theone most directly concerned with the subject we have now in hand. The centralideology discussed in the Politicus is the proper relation of government to law. Plato hasbeen claimed as a fellow by some of the modern proponents of the totalitarian state,but how anyone could honestly make such a claim after he had carefully pondered thePoliticus is wholly beyond comprehension. If one should disregard Plato's plainstatements of his purpose in the Republic, it is perhaps conceivable that one mightdistort that dialogue into a defense of actual arbitrary governments; yet the wholediscussion in the Politicus plainly shows that this is not Plato's true position but the veryantithesis of it. A godlike ruler should rule like a god, and if a godlike man should appearamong men, godlike rule would and should be gladly conceded to him. This wasAristotle's view, and he may well have got it from the teachings of Plato. It is of littleconsequence that there should be one ruler, or a few or many rulers, in such a state,provided the government be limited by law; and, in the cases where it is so limited,Plato finds an approximation of the "art" of the perfect despot close enough to warranthim in speaking of monarchy, aristocracy, and a constitutional democracy as forms ofgovernment, sadly defective indeed, but true; in comparison with the threecorresponding perverted forms, in all of which men totally devoid of any "strength ofart" superior to the law— the only justification of despotism—have nevertheless madetheir own art the state's sole law. Most possibly from the Roman law books themselves,the term came back into use in the later middle ages as applicable to secularenactments of the time. In England the famous Constitutions of Clarendon of 1164 werereferred to by Henry II and others as "constitutions," avitae constitutiones or leges, arecordatio vel recognitio of the relations purporting to have existed between church andstate in the time of Henry's grandfather, Henry I. But in substance these were clericalprovisions even though they were promulgated by secular authority, and this mayaccount for the application to them of the word "constitutions." The word, however, isoften found in a purely secular use at this time; though scarcely in any technical sense,for we find other words such as lex or edictum used interchangeably with constitutio fora secular administrative enactment.As just noted, the Constitutions of Clarendon arereferred to in the document itself as a "record" (recordatio) or a "finding" (recognitio).The author of the Leges Henrici Primi, who wrote early in the twelfth century, soon afterthe appearance of Henry I's well-known writ for the holding of the hundred and countycourts, also refers to that writ as a "record."Glanvill frequently uses the word"constitution" for a royal edict. He refers to Henry II's writ creating the remedy by grandassize as legalis ista constitutio, and calls the assize of novel disseisin both a recognitioand a constitutio. Bracton, writing a few years after the statute of Merton of 1236, callsone of its provisions a "new constitution," and refers to a section of Magna Cartareissued in 1225 as constitutio libertatis. In France about the same time Beaumanoirspeaks of the remedy in novel disseisin as une nouvele constitucion made by the kings.,"This use of the term "constitution" may have been new but the idea it conveys is inreality one of the oldest, if not the very oldest, in the whole history of constitutionalism.Whitelocke's phrase" the natural frame and constitution of the policy [i.e., polity] of thisKingdom, which is jus publicum regni" — in reality includes two conceptions of a

constitution closely connected and at times combined, but nevertheless distinct incharacter. One appears in Whitelocke's first words, "the natural frame of the state," andthis idea seems as old as the politeia of the Greeks, which we usually translate by ourword "constitution." The other conception is expressed by Whitelocke's other phrase,"jus publicum regni," the public law of the realm. The latter conception may not be asancient as the former, but it is very old. Cicero, for example, voices it in his De Re Publicain a passage which contains the first use. In commending a mixed form of government,Cicero says, "This constitution (haec constitutio) has a great measure of equabilitywithout which men can hardly remain free for any length of time."9 This abovementioned historical aspect shows, how the conception of constitutionalism emergedand developed through different phases.

IV. Medeival Approach

The medieval model of constitutionalism is often associated with Magna Carta (1215); init, the constitutionalistic idea that personal liberties should be protected from theauthority of the prince by established legal procedures was already present. But themedieval contributions to constitutional theory may be found in the sphere ofecclesiology under the label of conciliarism. Conciliarism was the idea that the pope wasnot an absolute ruler but a constitutional monarch whose authority was ministerial anddelegated to him for the common good of the church. The ultimate authority in thechurch, then, resides in the whole body of the believers or their representatives—namely, the general council. According to twelfth-century canonists, who grappled withthe questions surrounding the possible abuse of power by the pope, the pope was aninherent part of a general council and the authority of the pope with a general councilwas greater than without: an argument parallel to the secular idea of the supremacy ofthe king-in-parliament. The divine nature of papal authority did not necessarily result intheocratic absolutism because of the idea that the power of jurisdiction came from Godthrough the people; the power of the papal office originates from God, but the choice ofa person who assumes the office depends on the consent of human cooperation.

Between Glanvill at the end of the twelfth century and Bracton in the middle of the nextthe development of English governmental institutions goes on apace, and someincidental light on their spirit could no doubt be got from a careful study of thecontemporary records of the law cases which now become available. But of the truecharacter of the general principles underlying the medieval English constitution there isno indication so clear as the book on the laws and customs of England by Henry ofBratton, or Bracton — the greatest of medieval books on English law andconstitutionalism, if not on the law of any European nation. Bracton's book is a book ofcase law; it is probably, as has been said, the unique medieval book of case law, and

9 . Constitutionalism: Ancient and Modern, Charles Howard McIlwain (1947)—Discourse on the originsand development of constitution theory.

without doubt that case law is almost entirely an English law. But no attentive reader ofthe book can miss in it the great influence of a jurisprudence that is far older and farwider than any mere "law of reason secondary," and "particular" to England."If for onemoment we set his [Bracton's] book beside the Customs of Beauvais and the SaxonMirror," says Maitland, one fact worthy of note stares us in the face. The Englishman'swork both in its general structure and in many details has been influenced by Romanjurisprudence. Really if we place ourselves in the thirteenth century and look only at thesurface of things, it must seem very likely that England will soon adopt Roman law as awhole, while into Northern France and Germany it will make its way but slowly or never.After the event we can see why such a prediction would be foolish. The development inEngland of a centralized royal justice was rapid, exceptional and looking closer we seethat Bracton had no intention of supplanting English by Roman law. It is Rationalismrather than Romanism that he learnt from Azo's book, and this fact that at an early dateEnglish law was rationalized by an able man, is not the least among the causes whichprotected us against Romanism in the following centuries. Other instances of the sameview might be given almost without number, and before 1627 we find it asserted attimes even by the men who in later years were to be its most arduous opponents. Aslate as 1621 Sir Edward Coke himself admitted that there was a prerogative"indisputable." Sir Edward Crawley in the ship-money case contrasted this with theordinary or "disputable" prerogative by calling it "regal" in distinction from "legal."James I spoke of it as his "public prerogative," or "mystery of state," the arcanumimperii, "not fit for the tongue of any lawyer," while he professed that in his "privateprerogative" he was always willing to submit to the judgment of the courts. Hobbes hadthe same distinction in mind in his difference between "matter of polity" and matter oflaw10.

V. Modern Approach

Constitutionalism is a terminology used in an ambiguous way, virtually every politicaltheorist of modern period described constitution in there own terms. In fact manypolitical thinkers accepted that constitution is a pre-requisite to a legitimategovernment but undoubtedly it also create representation for society as a whole. Whatnearly everyone represent or share, though, is the thought that modern societies need aconstitution in order to be properly constructed. St. Thomas Aquinas argued that Godhad provided a mixed government for Israel, and had done well. The Jewish state, hesaid, preserved the advantages of monarchy but escaped corruption into tyranny; itemployed virtuous and wise men in the Sanhedrin, which was an aristocratic element,and these were chosen by the people, which was democratic. The scheme possessed

10 Supra note 9.

the stability which results when all have some share in the government. John of Parisbelieved that monarchy should be mixed with aristocracy and democracy. However, thiswas a literary tradition which only occasionally, as during the Conciliar controversy andin the Italian republics, touched the political life of the time. The conception ofmonarchy in the classical mixed state was in fact entirely alien to the medieval idea ofkingship. What was called the monarchic element in Sparta and in republican Rome wasnothing but a magistracy. Aristotle called the Spartan kings mere generals for life andclassified the Spartan state as a polity or constitutional government. Medieval kingship,on the other hand, was personal rather than official, and the political bond was apersonal tie between king and subject. To describe this, the Middle Ages resorted toAristotle's basic classification of forms of rule. Aristotle had distinguished three types:despotic rule, in which the ruler employs the subjects as instruments to serve his ownpurposes; royal rule, in which a natural superior governs his subjects for their benefit;and constitutional rule, in which the citizens rule and are ruled in turn. The mixed statefell in the third category. Forced to choose among the regimen despoticum, the regimenregale, and the regimen politicum, medieval writers fixed upon the regimen regale. Thissentiment by no means supplies a full philosophy of justice. It deals with the form ratherthan the content of legislation11. A. V. Dicey, in describing the virtues of the English "ruleof law" in his Law of the Constitution, spoke of the enthusiasm which greeted the fall ofthe Bastille. "When the fortress was taken, there were not ten prisoners within its walls;at that very moment hundreds of debtors languished in English gaols. Yet all Englandhailed the triumph of the French populace with a fervour which to Englishmen of thetwentieth century is at first sight hardly comprehensible. ... Its fate was felt, and felttruly, to herald in for the rest of Europe that rule of law which already existed inEngland."Yet the debtors can hardly have felt this generous glow. It surely makes adifference what the laws are which rule. Men have always thought so. Varioussubstantive theories of justice have existed from time to time, but these havecomplemented rather than supplied the constitutionalist tradition. To the Greeks, theproper legal rules for religion prescribed piety toward the local gods. To Aquinas, theyprescribed Catholic orthodoxy. Since the seventeenth century, freedom of worship hasprogressively gained ground. No one of these attitudes is inextricably associated withconstitutionalism. It is true that modern liberalism and revived constitutionalism cameinto the world together, and have in some degree been associated with each other, butthey can by no means be identified.

Nevertheless attempts have been made, since Dicey popularized the expression "rule oflaw" in 1885, to put the authority of Aristotle and the long tradition of constitutionalismbehind one or another local opinion. Dicey himself equated the rule of law to thedecision of cases by common law courts, in particular opposition to the administrativejustice of the continent, blandly ignoring the fact that the Rechtstaat, with its Romanlaw doctrine of the suability of the sovereign, might more properly than Great Britain

11. The Origins of Modern Constitutionalism, Francis D. Wormuth (1949)—Historical analysis of the keyconstitutional concepts.

represent itself as practicing the rule of law. The Supreme Court of the United States hasread Dicey's opinion into the two due process clauses of the constitution, thusconverting an amendment which was adopted to validate the Freedmen's Bureau into adevice to limit administrative authorities. In 1937, during the controversy over theproposed enlargement of the Supreme Court, it was widely proclaimed that the rule oflaw prescribed not only judicial control of the executive but also the number of judgeson the bench. Miscellaneous publicists have gone even further, arguing that the rule oflaw involves a censorship of the substance as well as the method of governmentalaction. These points shows that, they mark out the areas removed from the scope ofgovernmental action, have a certain external resemblance to the medieval doctrine ofdouble majesty. It can be said as the idea is altogether modern. They are not a part ofthe institution of constitutionalism. What that tradition has stood for, for twenty-fivehundred years, is the technicalities of the mixed state and the proposition that lawshould be general and approaching, this latter having been implemented in theseventeenth century by the doctrine of the separation of power. The mixed state isunintelligible in theory and insufficient in practice. The constitutionalist view of law, onthe other hand, represents a conception of justice so long and so widely held that it isprobably safe to say that no state can afford to ignore it. It teaches the process ratherthan the essence of governmental action, but it is a method to which we the humanbeings are associated from ancient time.

When the Constitution of India was adopted on November 26, 1949 by the ConstituentAssembly, its members were mindful of the challenges of governance. Speaking afterthe completion of his work, Dr. B.R. Ambedkar, Chairman of the Constitution DraftingCommittee, said: “I feel that the Constitution is workable; it is flexible and it is strongenough to hold the country together both in peacetime and in wartime. Yet there weregreat expectations that in the years to come, the Constitution would move from adocument worthy of admiration to a solid commitment on the part of power holders. Ithas a ability of Constitutions to act as limitations on the exercise of power, and in thatprocess delineate the functions of the government and outline the rights of the people,that distinguishes them from other legislation. The experience of 60 years ofconstitutional governance helps us understand the working of the Constitution ingeneral and the role of the judiciary in particular. Constitution is a mother act and agrund norm, as said by kelson a great legal scholar. To satisfy the basic conception” For this, the framers intended to fulfil the basic needs of citizens, and hoped that it wouldbring about fundamental changes in the structure of Indian society. The theme of socialrevolution runs throughout the proceedings and documents of the ConstituentAssembly. This theme formed the basis of the decision to adopt the parliamentary formof government and direct elections, the fundamental rights, the directive principles ofstate policy, and many of the executive, legislative, and judicial provisions of theConstitution. Although the social revolution theme was adopted throughout theConstitution, Parts III and IV fundamental rights and directive principles of state policydemonstrate the core of this commitment. These are perceived notions of theConstitution, because they provide the base for human rights and human development

policies for governance. The Constitution ensures that the fundamental rights areguaranteed as a matter of legal obligation rather than as a political concession. Theseare basic human rights and have been interpreted as civil, political, economic, social andcultural rights. Articles 12-35 of Part III elaborate on the fundamental rights. Articles 36-51 outline the framers’ vision for good governance and they constitute the directiveprinciples of state policy. To enforce both of these part it is essential to strengthenjudiciary, a significant and trust worthy institution in democracy. Judicial review animperative tool of developing judicial system was evolved by the American courts forthe very first time in Marlbury v. Madison12, Justice marshall placed the doctrine andsays that judges are directed by the constitution itself, took oath to support theconstitution, which constitutes the paramount law of the land. It is a duty placed uponjudges to review any law which is repugnant to the constitution. Seven year later inFlether v. Peck13, Supreme Court asserted its judicial reviewing power over both federaland state laws and thereby securing for itself the role of chief interpreter and arbiter ofconstitution. Similarly in Indian constitution article 32 and 226 gave wide powers toSupreme Court and High court respectively. Nevertheless, in several cases, it has heldthat the Supreme court can act as the custodian, defender of rights of people anddemocratic system of government only through the judicial review. In KeshvanandBharti’s case14,it was held that the judicial review is a ‘basic feature’of the constitutionand cannot be amended. The scope of judicial review is sufficient in India, to makeSupreme court a powerful agency to control the activity of executive and the legislature.A recent judgement of I.R.Coelho v. State of Tamil Nadu15 also shows how the notion ofjudicial review can be used to maintain separation of power and supremacy ofconstitution, the two important notion of Justice, whenever any of the organtransgresses its limit, judicial review is there to maintain check and balance. In no way,judicial review make the supreme court a rival of the Parliament. If democracy is tobecome consequential in India, it should be based on two important factors:enforcement of the rule of law and the transformation of the political governance –each dwelling upon the other. The judiciary is well suited to support both of these.

CONCLUSION

In summary, constitutionalism forms an institutional groundwork for the rule of law,strikes a proper balance between the rule of law and the rule of person, provides aminimal guarantee for the justice of both the content and the form of law and, finally, isitself safeguarded by the rule of law. This, in my view, constitutes a relatively completedepiction of the relationship between constitutionalism and the rule of law.Constitutionalism is also safeguarded by the rule of law in another sense. Forconstitutional provisions to be meaningfully and effectively operative, there must be aninstitutional and cultural machinery, which is partially created by the constitution itself,

12 5 U.S. 137; 1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352.13 10 U.S. (6 Cranch) 87; 3 L. Ed. 162;1810 U.S. LEXIS 322.14 Supra note 7.15 AIR 2007 SC 861.

to implement, enforce and safeguard the constitution. The rule of law is one keycomponent in the constitution-implementing and safeguarding machinery. Anindependent judiciary, independent constitutional review, and the notion of thesupremacy of law all work together to ensure that the letter and spirit of theconstitution are complied with in the working of a constitutional government.Constitutionalism is the philosophy of the constitution which imposes limitation uponthe exercise of power.

BIBLIOGRAPHY

1. Constitutionalism — Entry in the online Stanford Encyclopedia ofPhilosophy.

2. What is Constitutionalism? by Bo LI — Article in Perspectives, Vol. 1,No. 6.

3. Bachan Singh v.state of punjab.A.I.R.1982.S.C.1325.

4.John Austin :Province of Jurisprudence Determined p.9.

5.V.N.Shukla’s, Constitution of India.Preamble P.1.

6.Kelson’s main works include austrian constitution(1920);The PureTheory of Law(1934);Revised Theory of Pure Law(1960).

7.Quoted from Savigny’s essay ‘Vom Beruf’.

8. Keshvanand bharati v. state of kerala.AIR 1973 SC1461.

9. Constitutionalism: Ancient and Modern, Charles Howard McIlwain(1947)—Discourse on the origins and development of constitutiontheory.

10. The Origins of Modern Constitutionalism, Francis D. Wormuth (1949)—Historical analysis of the key constitutional concepts.

11. Marlbury v. Madison 5 U.S. 137; 1 Cranch 137; 2 L. Ed. 60; 1803 U.S.LEXIS 352.

12.Flether v. Peck 10 U.S. (6 Cranch) 87; 3 L. Ed. 162;1810 U.S. LEXIS322.13.I.R.COELHO V. STATE OF TAMIL NADU, AIR 2007 SC861