1.2.1 Principles of Constitutionalism
Constitutionalism refers to a political philosophy and a system of governance based on adherence to constitutional principles, the rule of law, and the limitation of governmental powers through a written constitution. In the context of Indian constitutional law, the concept of constitutionalism embodies various principles that are crucial to the functioning of the Indian Constitution and the governance of the country.
Rule of Law: The principle of rule of law is a fundamental tenet of constitutionalism in India. It implies that no one, including the government, is above the law. The Constitution is the supreme law of the land, and all actions of the government must be in accordance with its provisions. This principle ensures fairness, equality, and justice for all citizens.
Supremacy of the Constitution: Constitutionalism in India emphasizes the supremacy of the Constitution. It serves as the highest legal authority, and all laws and actions of the government must align with its provisions. The Constitution outlines the basic structure of the government, the distribution of powers, fundamental rights, and directive principles, which serve as guiding principles for governance.
Separation of Powers: Another key principle of constitutionalism is the separation of powers among the executive, legislative, and judicial branches of the government. The Indian Constitution clearly delineates the functions and powers of these branches to prevent the concentration of power in any single authority. This separation ensures a system of checks and balances, promoting accountability and preventing abuse of power.
Protection of Fundamental Rights: Constitutionalism in India places significant emphasis on protecting the fundamental rights of citizens. These rights, enshrined in the Constitution, include the right to equality, freedom of speech and expression, right to life and liberty, right against exploitation, cultural and educational rights, and more. The government is obligated to respect and protect these rights, and any infringement can be challenged in courts.
Judicial Review: The principle of judicial review is an integral part of constitutionalism. It grants the judiciary the power to review the constitutionality of laws and governmental actions. The Indian judiciary, particularly the Supreme Court, acts as the guardian of the Constitution and can strike down laws or actions that are inconsistent with its provisions. This power ensures that the government operates within the boundaries set by the Constitution.
Democratic Principles: Constitutionalism in India upholds democratic values and principles. It ensures free and fair elections, accountability of elected representatives, protection of minority rights, and promotes active citizen participation in the democratic process.
1.2.2 Constitutionalism vs. Mere Legalism
In the realm of Indian constitutional law, the distinction between constitutionalism and mere legalism is crucial, as it highlights the deeper essence and functioning of the legal system beyond a strict adherence to laws and legal procedures.
(1) Constitutionalism:
Embracing Constitutional Principles: Constitutionalism in India emphasizes adherence to constitutional principles rather than just following legal rules. It values the spirit and underlying values of the Constitution, promoting the rule of law, separation of powers, protection of fundamental rights, and the supremacy of the Constitution itself.
Upholding Principles Over Literal Interpretation: It focuses on interpreting and applying the Constitution in a manner that aligns with its underlying principles and objectives. This approach allows for a more flexible and adaptive interpretation that caters to evolving societal needs and values.
Protecting Fundamental Rights: Constitutionalism goes beyond the literal reading of laws to ensure the protection of fundamental rights enshrined in the Constitution. It recognizes that mere legality might not always guarantee justice or protect individual liberties, so it emphasizes the substantive realization of these rights.
Judicial Activism for Justice: Constitutionalism encourages judicial activism when necessary to uphold constitutional principles and protect rights. The judiciary intervenes to fill gaps in legislation or to correct injustices that may arise due to legal loopholes or deficiencies.
(2) Mere Legalism:
Adherence Solely to Legal Rules: Mere legalism, on the other hand, focuses primarily on strict adherence to legal rules and procedures without considering the broader constitutional values or principles. It tends to prioritize formal legality over substantive justice.
Literal Interpretation of Laws: It often adheres strictly to the literal interpretation of laws and regulations without much consideration for the spirit or intent behind them. This approach might lead to rigidity and an inability to adapt to changing societal norms and values.
Potential Disregard for Rights and Justice: Mere legalism might result in situations where the strict application of laws overlooks or undermines fundamental rights or fails to deliver justice in certain circumstances.
Less Flexibility and Adaptability: This approach may lack the flexibility needed to address complex or novel situations, potentially causing gaps or inadequacies in addressing contemporary issues.