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Dicta of the Supreme Court of India on Constitutionalism

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 Dicta of the Supreme Court of India on Constitutionalism

Aqa Raza 

Abstract
This aim of this research paper is two-fold: firstly, to study the concept of
“Constitutionalism” in the light of the judgments of the Supreme Court of
India, and secondly, to analyze the judgments of the Supreme Court of India
in which the Apex Court has explicated the “idea” of Constitutionalism. The
judgments of the Supreme Court of India in the nineteenth and twentieth
centuries have been analyzed hereunder.

The term ‘Constitutionalism’ has not been employed in any of the provision(s) of the
Constitution of India. The Supreme Court of India in its judgments has explicated the ‘idea’ of
constitutionalism and has employed the term ‘constitutionalism’. The term constitutionalism is
the blend of two words. One is ‘constitutionalism’ and the second, ‘constitutionalism’. The last
syllable ―the “ism”― has an additional meaning(s) that denote a theory. Constitutionalism is
pompous word for various aspects of study of constitutions. In order to understand the meaning
of the term ‘Constitutionalism’ let us first understand the meaning of the term ‘Constitution’,
and then the term ‘Constitutional’ in short. The term ‘Constitution’ literally means the act of
forming or establishing something. A Constitution is a basic law of the country. Out of it
various functions, it performs two main functions: firstly, it establishes the organs of the
government, and secondly, it demarcates the power of the organs of the government that it
establishes whereas, the term ‘Constitutional’ signifies of being consistent with or operating
under the law determining the fundamental political principles of a government. For example,
‘Constitutional Law’ means the law determining the fundamental political principles of a
government. The term ‘Constitutionalism’ contains in it the philosophy of three concepts i.e.,
Constitution, Constitutional and –ism. So, Constitutionalism= Constitution+ Constitution-al+
Constitution-al-ism.

When, the syllable ‘ism’ as a suffix is added after a word, it becomes a belief or theory/set of
theoretical claims. The word ‘ism’ means a philosophy or doctrine. In other word it connotes a
belief or system of belief(s) accepted as authoritative by some group or school. So,
constitutionalism is a philosophy which implies the concept of ‘limited government’.1 It is a


B.A., LL. B. (Hons.) and LL. M. (Gold Medalist) from Faculty of Law, The Aligarh Muslim University, Aligarh,
(Uttar Pradesh), Republic of India; email: aqaraza@outlook.com, Contact: +91 9457072364. This paper has been
published in the Indian Journal of Law and Policy Review, ISSN 2456 3773, Volume 2, August, 2017, pp. 06-28.
1
Constitutionalism is a theory but it is not just a normative theory. It is a theory about controlling, limiting, and

Page 1 of 21
philosophy of government channeled through and limited by a constitution”2 C. H. McIlwain
has said “Constitutionalism has one essential quality: it is a legal limitation on government.”3
This paper is an attempt to identify those decisions of the Supreme Court of India in which the
‘idea’ of constitutionalism has been explicated. There are few cases, where the Supreme Court
has used the term ‘Constitutionalism’ in its judgment but did not laid down any dicta relating
to it.4 Following seeks to extract the observation of the Supreme Court on constitutionalism.

The very first case in which the Supreme Court of India used the term ‘Constitutionalism’ and
explicated its ‘idea’ in its judgment is the State of Jammu & Kashmir v. Triloki Nath Khosa5
where the Court observed that ‘[t]he dilemma of democracy is as to how to avoid validating
the abolition of the difference between the good and the bad in the name of equality and putting
to sleep the constitutional command for expanding the areas of equal treatment for the weaker
ones with the dope of ‘special qualifications’ measured by expensive and exotic degrees. These
are perhaps meta-judicial matters left to the other branches of Government, but the Court must
hold the Executive within the loading strings of egalitarian constitutionalism and correct, by
judicial review, episodes of subtle and shady classification grossly violative of equal justice.
That is the heart of the matter. That is the note that rings through the first three fundamental
rights the people have given to themselves.’

In Shamsher Singh v. State of Punjab,6 the Court observed that ‘[w]e have, in the President and
Governor, a replicate of a constitutional monarch and a Cabinet answerable to Parliament,
substantially embodying the conventions of the British Constitution-not a turnkey project
imported from Britain, but an. edifice made in India with the know-how of British

restraining the power of the state. It is clear from the title of various books. See, Scott Gordon, Controlling the
State: Constitutionalism from Ancient Athens to Today (Cambridge: Harvard University Press, 1999) and András
Sajó, Limiting Government: An Introduction to Constitutionalism (Budapest: Central European Press, 1999).
2
See also, Roger Scruton, Dictionary of Political Thought 94 (London: Macmillan, 1982).
3
See, C. H. Mcilwain, Constitutionalism: Ancient and Modern 24 (Ithaca: Cornell University Press, 1940).
4
All Party Hill Leaders’ Conference, Shillong v. Captain M. A. Sangma, See, www.judis.nic.in. This is a Full
Bench decision of the Supreme Court of India. The judgment of the Court was delivered by Justice P. K. Goswami
on 12.09.1977; Har Sharan Verma v. State of U. P., See, www.judis.nic.in. This is a Division Bench decision of
the Supreme Court of India. The judgment of the Court was delivered by Justice E. S. Venkataramiah on
10.01.1985; Kihoto Hollohan v. Zachillhu, See, www.judis.nic.in. This is a Constitutional Bench decision of the
Supreme Court of India. The judgment of the Court was delivered by Justice M. N. Venkatachalliah on
18.02.1992;
5
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered by Justice V. R. Krishna Iyer on 26.09.1973. Cited in B. Manmad Reddy v. Chandra
Prakash Reddy, See, www.judis.nic.in. This is a Division Bench decision of the Supreme Court of India. The
judgment of the Court was delivered by Justice T. S. Thakur on 17.02.2010.
6
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered by Chief Justice A. N. Ray on 23.08.1974.

Page 2 of 21
Constitutionalism. If this theory be sound, Government is carried on by the Ministers according
to the rules of allocation of business and, the Governor, no more than the Queen, need know
or approve orders issued in his name. The core of the Westminster system is that the Queen
resigns, but the Ministers rule, except in a few special, though blurred, areas, one of which
certainly is not the appointment and dismissal of civil servants.’

In B. Banerjee v. Anita Pan,7 the Court observed that ‘[m]ore buildings is the real solution for
dwelling shortage; freezing scarcer accommodation relieves for a little while. Tiger balm is no
serious cure for brain turnover. We make no more comments on the need for dynamic housing
policies beyond statutory palliatives. These belong to legislative ‘wisdom’ and administrative
‘activism’ and not to judicial ‘constitutionalism’.’

In Additional District Magistrate, Jabalpur v. S. S. Shukla,8 the Court observed as under:

It is evident that a national emergency creates problems for a democracy no less than for
other governments. A totalitarian Government may handle such a situation without
embarrassment. But the apparent necessities evoked by danger often conflict gravely with
the postulates of constitutional democracy. The question arises-and that was a question
posed by Abraham Lincoln on July 4, 1861: can a democratic constitutional government
beset by a national emergency be strong enough to maintain its own existence without at
the same time being so strong as to subvert the liberties of the people it has been instituted
to defend. This question is answered affirmatively by the incontestable facts of history if
we have regard to the experience of emergency governments of three large modern
democracies-the United States, Great Britain and France. There is no reason why the
Indian experience should be otherwise, if the basic norms of constitutionalism in
assumption of emergency powers are observed. What are these basic norms in a
constitutional democracy and what is the purpose behind assumption of emergency powers
are matters which I shall presently discuss. But before I do so, let me first consider what
are the different types of emergency which may plague the government of a country…both
in India of Brahadaranyaka Upnishad and Greece of Aristotle, has tamed arbitrary exercise
of power by the government and constitutes one of the basic tenets of constitutionalism.

Quoting the famous words of Lord Atkin in his powerful dissent in Liversidge v. Sir John
Anderson9 the Court further observed as under:

7
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered by Justice V. R. Krishna Iyer on 20.11.1974.
8
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered by Chief Justice A. N. Ray on 28.04.1976.
9
[1942] AC 206.

Page 3 of 21
 [A]mid the clash of arms and much more so in a situation of emergency arising from
threat of internal subversion-"laws are not silent. They may be changed, but they speak
the same language in war and in peace". I am also conscious-and if I may once again
quote the words of that great libertarian Judge "Judges are no respector of persons and
stand between the subject and any attempted encroachments on his liberty by the
executive, alert to see that any coercive action is justified in law". But at the same time
it can’t be overlooked that, in the ultimate analysis, the protection of persona] liberty
and the supremacy of law which sustains it must be governed by the constitution itself.
The Constitution is the paramount and supreme law of the land and if it says that even
if a person is detained otherwise than in accordance with the law, he shall not be entitled
to enforce his right of personal liberty, whilst a Presidential order under Article 359,
clause (l) specifying Article 21 is in force I have to give effect to it. Sitting as l do, as a
Judge under the constitution, I cannot ignore the plain and emphatic concerned of the
Constitution or what I may consider to be necessary to meet the end of justice. It is said
that law has the feminine capacity to tempt each devotee to find his own image in her
bosom. No One escapes entirely. Some yield badly, some with sophistication. Only a
few more or less effectively resist. I have always leaned in favour of upholding personal
liberty, for, I believe, it is one of the most cherished values of mankind. Without it life
would not be worth living. It is one of the pillars of free democratic society. Men have
readily laid down their lives at is altar, in order to secure it, protect it and preserve it.
But I do not think it would be right for me W allow my love of personal liberty to cloud
my vision or to persuade me to place on the relevant provision of the constitution a
construction which its language cannot reasonably bear. I cannot assume to myself the
role of Plato’s Philosopher king’s in order to render what I consider ideal justice
between the citizen and the State. After all" the Constitution is the law of all laws and
there alone judicial conscience must find its ultimate support, and its final resting place.
It is in this spirit of humility and obedience to the Constitution and driven by judicial
compulsion, that I have come to the conclusion that the Presidential order dated 27th
June, 1975 bars maintainability of a writ petition for habeas corpus there an order of
detention is challenged on the ground that it is mala fide or not under the Act or not in
compliance with it.
In R. S. Joshi, S.T.O. Gujarat v. Ajit Mills Ltd., Ahmedabad,10 the Court observed that ‘[t]his
signification of ‘forfeiture’ as ‘liability to forfeiture’ saves the equity of the statute. The
Commissioner must have regard to the circumstances of the case, including the fact that
amounts illegally collected have been returned to the purchasers to whom they belong before
passing the final order. We are clear in our minds that the forfeiture should operate only to the
extent, and not in excess of, the total collections less what has been returned to the purchasers.
We may go a step further to hold that it is fair and reasonable for the Commissioner to consider

10
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered by Justice V. R. Krishna Iyer on 31.08.1977.

Page 4 of 21
any undertaking given by the dealer that he will return the amounts collected from purchasers
to them. The humanism of a provision may bear upon its constitutionalism.’

In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh,11 the Court
observed that ‘[i]t is not out of place to mention that if the State takes up a flexible attitude it
may be possible to permit long spells of parole, under controlled conditions, so that fear that
the full freedom if bailed out, might be abused, may be eliminated by this experimental
measure, punctuated by reversion to prison. Unremitting insulation in the harsh and hardened
company of prisoners leads to many unmentionable vices that humanizing interludes of parole
are part of the compassionate constitutionalism of our system. The basics being thus
illuminated, we have to apply them to the tangled knot of specifics projected by each case. The
delicate light of the law favours release unless countered by the negative criteria necessitating
that course. The co-effective instinct of the law plays upon release orders by strapping on to
them protective and curative conditions. Heavy bail from poor man is obviously wrong.
Poverty is society’s malady and sympathy, not sternness, is the judicial response.’

In State of Haryana v. Darshana Devi,12 the Court observed that ‘[w]e should expand the
jurisprudence of Access to Justice as an integral part of Social Justice and examine the
constitutionalism of court-fee levy as a facet of human rights highlighted in our Nation’s
Constitution. If the State itself should travesty this basic principle, in the teeth of Articles 14
and 39A, where an indigent widow is involved, a second look at its policy is overdue. The
Court must give the benefit of doubt against levy of a price to enter the temple of justice until
one day the whole issue of the validity of profit making through sale of civil justice, disguised
as court fee, is fully reviewed by this Court. Before parting with this point we must express our
poignant feeling that no State, it seems, has, as yet, framed rules to give effect to the benignant
provision of legal aid to the poor in Order XXXIII Rule 9A, Civil Procedure Code, although
several years have passed since the enactment. Parliament is stultified and the People are
frustrated. Even after a law has been enacted for the benefit of the Poor, the State does not
bring into force by willful default in fulfilling the conditio sine qua non. It is a public duty of

11
See, www.judis.nic.in. The judgment of the Court was delivered by Justice V. R. Krishna Iyer on 06.12.1977.
This part of the judgment was also referred in the Babu Singh v. State of U. P., See, www.judis.nic.in. This is a
Division Bench decision of the Supreme Court of India. The judgment of the Court was delivered by Justice V. R.
Krishna Iyer on 31.01.1978.
12
See, www.judis.nic.in. This is a Division Bench decision of the Supreme Court of India. The judgment of the
Court was delivered by Justice V. R. Krishna Iyer on 12.02.1979.

Page 5 of 21
each great branch of Government to obey the rule of law and uphold the tryst with the
Constitution by making rules to effectuate legislation meant to help the poor.’

In Sunil Batra v. Delhi Administration,13 the Court observed that ‘[t]he Prisons Act and Rules
need revision if a constitutionally and culturally congruous code is to be fashioned. The model
jail manual, we are unhappy to say and concur in this view with the learned Solicitor General,
is far from a model and is, perhaps, a product of prison officials insufficiently instructed in the
imperatives of the Constitution and unawakened to the new hues of human rights. We accept,
for the nonce, the suggestion of the Solicitor General that within the existing statutory
framework the requirements of constitutionalism nay be read. He heavily relies on the need for
a judicial agency whose presence, direct or by delegate, within the prison walls will deal with
grievances. For this purpose, he relies on the Board of Visitors, their powers and duties, as a
functional substitute for a Prison ombudsman. A controller ate is the desideratum for in situ
reception and redressal or grievances.’

In Charles. K. Skaria v. Dr. C. Mathew,14 the Court observed as under:

The universities in the country are often among the contributories to the flood of litigation
in the higher courts of the country…State is not alone in the tendency to temporarian with
constitutional values and writ petitions for college admissions are almost a hardly annual,
we deem it our duty to permit ourselves a few preliminary observations before proceeding
to the fact-situation and conflict-resolution. Principled policy, consistent with
constitutional imperatives (Articles 14 and 15) must guide admissions to courses in higher
professional education but Government and Universities, not infrequently take liberties
with this larger obligation under provincial pressures and institutional compulsions and
seek asylum in reluctant pragmatism mindless of hostility to constitutionality. Nothing is
more harrowing for the Court, over-burdened with increasing litigation and thereby forced
into slow motion, and unwilling to intervene in an administrative area, than to hamper the
strategic stages of educational processes like admissions and examinations, but the Justice
system cannot run away from hearing and deciding questions of unconstitutionality,
especially when educational authorities shape policies, change rules and make peace with
the crisis of the hour, ignoring the parameters of the National Charter. We make these
observations driven by the painful experience of facing this situation year after year, from
State after State. If higher education bids farewell to national vision and equal opportunity-
the two fundamental criticisms levelled before us in these cases-what hope is there for
constitutionalism save surrender to provincialism and lobby power leaving the fortunes of
students of advanced learning to litigative astrology annually? A national consensus on

13
See, www.judis.nic.in. This is a Full Bench decision of the Supreme Court of India. The judgment of the Court
was delivered by Justice V. R. Krishna Iyer on 20.12.1979.
14
See, www.judis.nic.in. This is a Division Bench decision of the Supreme Court of India. The judgment of the
Court was delivered by Justice V. R. Krishna Iyer on 19.03.1980.

Page 6 of 21
 this issue is long over-due and we venture to suggest that the Union of India will actively
involve the academic community and the States, and put the problem on the urgent national
agenda and reach solutions constitutionally permissible and agreeable to the genius of the
States vis-a-vis postgraduate courses. No State nor University can despise the Constitution
nor leave in ‘inglorious uncertainty’ or myopic ad hocism the career of its talented human
resources.

In Maru Ram v. Union of India,15 the Court observed that ‘[A]rticle 14 is an expression of the
egalitarian spirit of the Constitution and is a clear pointer that arbitrariness is anathema under
our system. It necessarily follows that the power to pardon, grant remission and commutation,
being of the greatest moment for the liberty of the citizen, cannot be a law unto itself but must
be informed by the finer canons of constitutionalism.’

In Vijay Kumar Sharma v. State of Karnataka,16 the Court observed, “Constitutionalism is the
alter to test on its anvil the constitutionality of a statute and Article 254 is the sole fountain
source concerning a State law in the Concurrent List.”

In R. C. Poudyal v. Union of India,17 the Court observed as under:

The power is limited by the fundamentals of the Indian constitutionalism and those terms
and conditions which the Parliament may deem fit to impose, cannot be inconsistent and
irreconcilable with the foundational principles of the Constitution and cannot violate or
subvert the Constitutional scheme. This is not to say that the conditions subject to which a
new State or territory is admitted into the Union ought exactly be the same as those that
govern all other States as at the time of the commencement of the Constitution…These
reservations of seats for the ethnic and religious groups are assailed by the petitioners who
are Sikkimese of Nepali origin as violative of the fundamentals of the Indian
constitutionalism and as violative of the principles of republicanism and secularism
forming the bedrock of the Indian constitutional ethos. The basic contention is that Sikkim
citizen is as much as citizen of the Union of India entitled to all the Constitutional
guarantees and the blessings of a Republican Democracy…Mere existence of a
Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is

15
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered by Justice V. R. Krishna Iyer on 11.11.1980. Cited in Narayan Dutt v. State of Punjab,
See, www.judis.nic.in. This is a Division Bench decision of the Supreme Court of India. The judgment of the Court
was delivered by Justice Asok Kumar Ganguly on 24.02.2011; Epuru Sudhakar v. Govt. of A. P., See,
www.judis.nic.in. The judgment of the Court was delivered by Justice Arijit Pasayat on 11.10.2006.
16
See, www.judis.nic.in. This is a Full Bench decision of the Supreme Court of India. The judgment of the Court
was delivered by Justice Misra Rangnath on 27.02.1990.
17
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered by Justice M. N. Venkatachalliah on 10.02.1993. Cited in B. P. Singhal v. Union of India,
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of the
Court was delivered by Justice R. V. Raveendran on 07.05.2010.

Page 7 of 21
 the political maturity and traditions of a people that import meaning to a Constitution
which otherwise merely embodies political hopes and ideals.

In Avinash Nagra v. Navodaya Vidyalaya Samiti,18 the Court observed as under:

As a member of the noble teaching profession and a citizen of India he (the teacher) should
always be willing, self-disciplined, dedicated with integrity to remain ever a learner of
knowledge, intelligently to articulate and communicate and imbibe in his students, as
social duty, to impart education, to bring them up with discipline, inculcate to abjure
violence and to develop scientific temper with a spirit of enquiry and reform constantly to
rise to higher levels in any walk of life nurturing Constitutional ideals enshrined in Article
51A so as to make the students responsible citizens of the country. Thus the teacher either
individually or collectively as a community of teachers, should regenerate this dedication
with a bent of spiritualism in broader perspective of the Constitutionalism with secular
ideologies enshrined in the Constitution as an arm of the State to establish egalitarian social
order under the rule of law. Therefore, when the society has given such a pedestal, the
conduct, character, ability and disposition of a teacher should be to transform the student
into a disciplined citizen, inquisitive to learn, intellectual to pursue in any walk of life with
dedication, discipline and devotion with an inquiring mind but not with blind customary
beliefs. The education that is imparted by the teacher determines the level of the student
for the development, prosperity and welfare of the society. The quality, competence and
character of the teacher are, therefore, most significant for the efficiency of the education
system as pillar of built democratic institutions and to sustain them in their later years of
life as a responsible citizen in different responsibilities. Without a dedicated and
disciplined teacher, even the best of education system is bound to fail. It is, therefore, the
duty of the teacher to take such care of the pupils as a careful parent would take of its
children and the ordinary principle of vicarious liability would apply where negligence is
that of a teacher. The age of the pupil and the nature of the activity in which he takes part,
are material factors determining the degree and supervision demanded by a teacher.

In State of Bihar v. Subhash Singh,19 the Court observed, “The State is subject to etat de droit,
i.e., the State is submitted to the law which implies that all actions of the State or its authorities
and officials must be carried out subject to the Constitution and within the limits set by the law,
i.e., constitutionalism.”

In Rajeev Mankotia v. The Secretary to the President of India,20 the Court observed that
‘[d]emocracy is its basic feature (of the Constitution of India); Constitutionalism, rule of law

18
See, www.judis.nic.in. This is a Division Bench decision of the Supreme Court of India. The judgment of the
Court was delivered on 30.09.1996; Cited in, Mohan Lal v. State of Punjab, See, www.judis.nic.in. This is a
Division Bench decision of the Supreme Court of India. The judgment of the Court was delivered by Justice Dr.
B. S. Chauhan on 11.04.2013;
19
See, www.judis.nic.in. The judgment of the Court was delivered on 03.02.1997.
20
See, www.judis.nic.in. The judgment of the Court was delivered on 27.03.1997.

Page 8 of 21
and democratic governance as basic means to establish an egalitarian social order in which
every citizen of Bharata is entitled to enjoy justice social, economic and political liberties, and
equality of status and of opportunity, with dignity of person and fraternity among all the
sections of the society as an integrated Bharat.’

In Swaran Singh State of U. P.,21 the Court observed that ‘[a]ll public power, including
constitutional power, shall never be exercisable arbitrarily or malafide, and ordinarily
guidelines for fair and equal execution are guarantors of valid play 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, the by-product order cannot get the approval of law and in such cases, the
judicial hand must be stretched to it.’

In Satpal v. State of Haryana,22 the Court observed, “[T]he power to pardon, grant remission
and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law
unto itself but must be informed by the finer canons of constitutionalism.”

In S. R. Chaudhuri v. State of Punjab,23 the Court quoted the words of the former Chief Justice
of India, Shri M. N. Venkatachaliah in his Foreword to the "Constitution of Jammu & Kashmir-
Its Development and Comments" (Third Edition - 1998) which has been reproduced as under:

"The mere existence of a Constitution, by itself, does not ensure constitutionalism.

What important are the political traditions of the people and its spirit and determination
to work out its constitutional salvation through the chosen system of its political
organisation."

The Court also quoted from the book “Constitutionalism in the Emergent States” (1973 Edition,
p. 139) by Prof. B. O. Nwabueze. The same has been reproduced as under:

Prof. B. O. Nwabueze almost thirty years ago warned that experience has amply
demonstrated that the greatest danger to constitutional government in emergent states
arises from the human factor in politics, from the capacity of politicians to distort and
vitiate whatever governmental forms may be devised. Institutional forms are of course

21
See, www.judis.nic.in. The judgment of the Court was delivered on 05.03.1998. Cited in Narayan Dutt v. State
of Punjab, See, www.judis.nic.in. This is a Division Bench decision of the Supreme Court of India. The judgment
of the Court was delivered by Justice Asok Kumar Ganguly on 24.02.2011; Epuru Sudhakar v. Govt. of A. P., See,
www.judis.nic.in. The judgment of the Court was delivered by Justice Arijit Pasayat on 11.10.2006;
22
See, www.judis.nic.in. This is a Division Bench decision of the Supreme Court of India. The judgment of the
Court was delivered by Justice Pattanaik on 01.05.2000.
23
See, www.judis.nic.in. The judgment of the Court was delivered on 17.08.2001.

Page 9 of 21
 important, since they can guide for better or for worse the behaviour of the individuals
who operate them. Yet, however carefully the institutional forms may have been
constructed, in the final analysis, much more will turn upon the actual behaviour of
these individuals - upon their willingness to observe the rules, upon a statesmanlike
acceptance that the integrity of the whole governmental framework and the regularity
of its procedures should transcend any personal aggrandizement. The successful
working of any constitution depends upon what has aptly been called the ’democratic
spirit’, that is, a spirit of fair play, of self-restraint and of mutual accommodation of
differing interests and opinions. There can be no constitutional government unless the
wielders of power are prepared to observe the limits upon governmental powers.

The Court further observed that ‘[P]rof. Nwabueze’s warning has great relevance today in the
context under our consideration. For parliamentary democracy to evolve and grow certain
principles and policies of public ethics must form its functioning base. Actions such as in the
present case, pose grave danger to foundations and principles of constitutionalism and the same
must be warded off by developing right attitude towards constitutional provisions.
Constitutional restraints must not be ignored or bypassed if found inconvenient or bent to suit
"political expediency". We should not allow erosion of principles of constitutionalism.’

In B. R. Kapoor v. State of Tamil Nadu,24 the Court observed that ‘[n]o written constitution
would contain all the detailed rules upon which the government depends. The rules for electing
the legislature are usually found not in the written Constitution but in the statutes enacted by
the legislature within limits laid down by the Constitution. A Constitution is a thing antecedent
to a government, and a government or a good governance is a creature of the Constitution. A
documentary Constitution reflects the beliefs and political aspirations of those who had framed
it. One of the principles of constitutionalism is what it had developed in the democratic
traditions; a primary function that is assigned to the written Constitution is that of controlling
the organs of the Government. Constitutional law pre-supposes the existence of a State and
includes those laws which regulate the structure and function of the principal organs of
government and their relationship to each other and to the citizens. Where there is a written
Constitution, emphasis is placed on the rules which it contains and on the way in which they
have been interpreted by the highest court with constitutional jurisdiction. Where there is a

24
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered on 21.09.2001.

Page 10 of 21
written Constitution the legal structure of Government may assume a wide variety of forms.
Within a federal constitution, the tasks of government are divided into two classes, those
entrusted to the federal organs of government, and those entrusted to the various states, regions
or provinces which make up the federation. But the constitutional limits bind both the federal
and state organs of government, which limits are enforceable as a matter of law. Many
important rules of constitutional behaviour, which are observed by the Prime Minister and
Ministers, Members of the Legislature, Judges and Civil servants are contained neither in Acts
nor in judicial decisions. But such rules have been nomenclature by the Constitutional Writers
to be the rule of the positive morality of the constitution and sometimes the authors provide the
name to be the unwritten maxims of the constitution. Rules of constitutional behaviour, which
are considered to be binding by and upon those who operate the Constitution but which are not
enforced by the law courts nor by the presiding officers in the House of Parliament. Sir Ivor
Jennings, in his book, Law and the Constitution had stated that constitutional conventions are
observed because of the political difficulties which arise if they are not. These rules regulate
the conduct of those holding public office and yet possibly the most acute political difficulty
can arise for such a person is to be forced out of office.’

In Union of India v. Naveen Jindal,25 the Court observed that ‘[t]he unity and integrity of India
if to be perceived in diverse situation, the feeling of loyalty, commitment and patriotism can
be judged not only by giving effect to the constitutionalism but also on their secular symbol
unhidden as noticed hereinbefore. The question of this nature has to be considered not from the
answer as to whether there exists an express provision on the basis whereof a right to fly the
National Flag can be rested or whether there is anything in the Constitution prohibiting or
denying the exercise of such a right. If flying of a National Flag is considered in absence of
any denial thereof either in the Constitution or in any other statute book, it may be held to be a
part of the fundamental right.’

In Tirupati Balaji Developers Pvt. Ltd. State of Bihar,26 the Court observed as under:

The framers of the Constitution did not think it necessary to specifically confer power on
the Supreme Court to give a command to the High Court for they were men of vision and
foresight. They knew that all the constitutional functionaries and institutions would act in
the best interest of norms and traditions consistent with democracy and constitutionalism,
set down in and discernible from the Constitution and as handed down by history and

25
See, www.judis.nic.in. The judgment of the Court was delivered by Chief Justice of India V. N. Khare on
23.01.2004.
26
See, www.judis.nic.in. The judgment of the Court was delivered on 21.04.2004.

Page 11 of 21
 generations of judges. Everyone would, it was expected, keep within its bounds and would
not overstep its limits so that ideals and the values remain a living reality and do not
become either an intrusion or an illusion. The constitutional and democratic institutions,
complementing and supplementing each other, would lend strength to these handed down
traditions and would also contribute to developing such rich traditions as would be
respected and hailed by posterity. This would result in strengthening the working of the
Constitution….In the realms of constitutionalism the values of mutual trust and respect
between the functionaries, nurtured by tradition, alleviate the need to codify the rules of
the relationship. Experience shows that any rigid codification of such delicate relationship
is advantageous to those bent upon vilification. A rigid written law makes it difficult to
maintain that dignity which is better and rightly left to be perceived by right- minded
people who zealously uphold the dignity of others as they do their own.

In Rameshwar Prasad v. Union of India,27 the Court observed, “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.”

In Rameshwar Prasad v. Union of India,28 the Court observed that ‘[d]emocratic theory turns
to moral relativism, constitutionalism turns to moral realism. It presumes that "out there" lurk
discoverable standards to judge whether public policies infringe on human dignity. The
legitimacy of a policy depends not simply on the authenticity of decision makers’ credentials
but also on substantive criteria. Even with the enthusiastic urging of a massive majority whose
representatives have meticulously observed proper processes, government may not trample on
fundamental rights. For constitutionalists, political morality cannot be weighed on a scale in
which "opinion is an omnipotence," only against the moral criterion of sacred, individual rights.
They agree with Jafferson: "An elective despotism was not the government we fought for......"
(From Constitutions, Constitutionalism, and Democracy by Walter F. Murphy).’

In M. Nagaraj v. Union of India,29 the Court observed that [c]onstitutionalism is about limits
and aspirations. According to Justice Brennan, interpretation of the Constitution as a written
text is concerned with aspirations and fundamental principles. In his Article titled ‘Challenge
to the Living Constitution’ by Herman Belz, the author says that the Constitution embodies
aspiration to social justice, brotherhood and human dignity. It is a text which contains

27
See, www.judis.nic.in. This is a Full Bench decision of the Supreme Court of India. The judgment of the Court
was delivered by Chief Justice of India Y. K. Sabharwal on 24.01.2006.
28
See, www.judis.nic.in. The judgment of the Court was delivered by Justice Arijit Pasayat on 24.01.2006.
29
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered by Justice Kapadia on 19.10.2006.

Page 12 of 21
fundamental principles. Fidelity to the text qua fundamental principles did not limit judicial
decision making. The tradition of the written constitutionalism makes it possible to apply
concepts and doctrines not recoverable under the doctrine of unwritten living constitution. To
conclude, as observed by Chandrachud, C.J., in Minerva Mills Ltd., ‘the Constitution is a
precious heritage and, therefore, you cannot destroy its identity’.’

In I. R. Coelho v. State of Tamil Nadu,30 the Court observed as under:

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 upon which it is based. These democratic principles include the protection of
fundamental rights. The principle of constitutionalism advocates a check and balance
model of the separation of powers, it requires a diffusion of powers, necessitating different
independent centers of decision taking. The principle of constitutionalism underpins the
principle of legality which requires the Courts to interpret legislation on the assumption
that Parliament would not wish 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.

The protection of fundamental constitutional rights through the common law is main
feature of common law constitutionalism. Under the controlled Constitution, the principles
of checks and balances have an important role to play. Even in England where Parliament
is sovereign, Lord Steyn has observed that in certain circumstances, Courts may be forced
to modify the principle of parliamentary sovereignty, for example, in cases where judicial
review is sought to be abolished. By this the judiciary is protecting a limited form of
constitutionalism, ensuring that their institutional role in the Government is maintained.

In State of U. P. v. Jeet S. Bisht,31 the Court quoted the following from an illuminating piece
by Cass R. Sunstein (Constitutionalism after the New Deal, 101 HVLR 421):

"In the New Deal period, the original constitutional framework was thus reformulated in
three fundamental ways. The New Deal set out a different conception of legal rights,
rejecting common law and status quo baselines for deciding what constituted governmental
‘action’ and ‘inaction’; it proposed a dramatically different conception of the presidency
and a novel set of administrative actors; and it rejected traditional notions of federalism.
The term ‘New Deal constitutionalism’ describes the resulting structure."

30
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered by Chief Justice of India Y. K. Sabharwal on 11.01.2007. Cited in State of West Bengal
v. The Committee for Protection of Democratic Rights, West Bengal, See, www.judis.nic.in. This is a Constitutional
Bench decision of the Supreme Court of India. The judgment of the Court was delivered by Justice D. K. Jain on
17.02.2010.
31
See, www.judis.nic.in. The judgment of the Court was delivered by Justice S. B. Sinha on 18.05.2007.

Page 13 of 21
 (Emphasis supplied)

In New India Assurance Company Ltd. v. Nusli Neville Wadia,32 the Court observed, “For
proper interpretation not only the basic principles of natural justice have to be borne in mind,
but also principles of constitutionalism involved therein.”

In Mahalakshmi Sugar Mills Co. Ltd. v. Union of India,33 the Court observed, “For proper
interpretation not only the basic principles of natural justice have to be borne in mind, but also
principles of constitutionalism involved therein.”

In United India Insurance Company Limited v. Manubhai Dharmasinhbhai Gajera,34 the Court
observed, “A foreign law should not be applied when the constitutionalism operating in the
countries are different. We have to apply the law keeping in view the equality clause contained
in Article 14 of the Constitution of India. It is a heart and soul of our Constitution.”35

In Noor Aga v. State of Punjab,36 the Court as to the application of international law in a case
involving war crime, quoted the following from the Constitutional Court of South Africa in
State v. Basson:37

“When allegations of such serious nature are at issue, and where the exemplary value
of constitutionalism as against lawlessness is the very issue at stake, it is particularly
important that the judicial and prosecutorial functions be undertaken with rigorous and
principled respect for basic constitutional rights. The effective prosecution of war
crimes and the rights of the accused to a fair trial are not antagonistic concepts. On the
contrary, both stem from the same constitutional and humanitarian foundation, namely
the need to uphold the rule of law and the basic principles of human dignity, equality
and freedom.”

In Official Liquidator v. Dayanand,38 the Court observed as under:

[I]n Secretary, State of Karnataka v. Uma Devi, [2006 (4) SCC 1] the Constitution
Bench considered the question whether the State can frame scheme for regularization
of the services of ad-hoc/temporary/daily wager appointed in violation of the doctrine

32
See, www.judis.nic.in. This is a Division Bench decision of the Supreme Court of India. The judgment of the
Court was delivered by Justice S. B. Sinha on 13.12.2007. Cited in Krishna Kumar Birla v. Rajendra Singh Lodha,
See, www.judis.nic.in. The judgment of the Court was delivered by Justice S. B. Sinha on 31.03.2008; D.
Purushotama Reddy v. K. Sateesh, See, www.judis.nic.in. The judgment of the Court was delivered by Justice S.
B. Sinha on 01.08.2008.
33
See, www.judis.nic.in. The judgment of the Court was delivered by Justice S. B. Sinha on 31.03.2008.
34
See, www.judis.nic.in. The judgment of the Court was delivered by Justice S. B. Sinha on 16.05.2008.
35
Ibid., at Para 48.
36
See, www.judis.nic.in. The judgment of the Court was delivered by Justice S. B. Sinha on 09.07.2008.
37
[2004 (6) BCLR 620 (CC)].
38
See, www.judis.nic.in. The judgment of the Court was delivered by Justice G. S. Singhvi on 04.11.2008.

Page 14 of 21
 of equality or the one appointed with a clear stipulation that such appointment will not
confer any right on the appointee to seek regularization or absorption in the regular
cadre and whether the Court can issue mandamus for regularization or absorption of
such appointee and answered the same in negative. the Court to the theme of
constitutionalism in a system established in rule of law, expanded meaning given to the
doctrine of equality in general and equality in the matter of employment in particular,
multi-facet problems including the one relating to unwarranted fiscal burden on the
public exchequer created on account of the directions given by the High Courts and this
Court for regularization of the services of persons appointed on purely temporary or ad
hoc basis or engaged on daily wages or as casual labourers, referred to about three
dozen judgments39 and held:

“When a person enters a temporary employment or gets engagement as a

contractual or casual worker and the engagement is not based on a proper
selection as recognised by the relevant rules or procedure, he is aware of the
consequences of the appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate expectation for
being confirmed in the post when an appointment to the post could be made
only by following a proper procedure for selection and in cases concerned, in
consultation with the Public Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully advanced by temporary,
contractual or casual employees. It cannot also be held that the State has held
out any promise while engaging these persons either to continue them where
they are or to make them permanent. The State cannot constitutionally make
such a promise. It is also obvious that the theory cannot be invoked to seek a
positive relief of being made permanent in the post.

In N. Kannadasan v. Ajoy Khose,40 the Court observed, “Constitutionalism envisages that all
laws including the constitutional provisions should be interpreted so as to uphold the basic
feature of the Constitution.”

In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra,41 the Court observed,

“Public Opinion may also run counter to the Rule of law and constitutionalism.”

In Subhash Chandra v. Delhi Subordinate Services Selection Board,42 the Court observed that
‘[t]he law relating to affirmative action and protective discrimination by way of reservation of

39
including R. N. Nanjundappa v. T. Thimmiah [1972 (1) SCC 409], Daily Rate Casual Labour v. Union of India
[1988 (1) SCC 122], Bhagwati Prasad v. Delhi State Mineral Development Corporation [1990 (1) SCC 361],
Dharwad District P.W.D. Literate Daily Wage Employees Association and others v. State of Karnataka and others
[1990 (2) SCC 396], State of Haryana v. Piara Singh [1992 (4) SCC 118] and State of Punjab v. Surinder Kumar
[1992 (1) SCC 489].
40
See, www.judis.nic.in. The judgment of the Court was delivered by Justice S. B. Sinha on 06.05.2009.
41
See, www.judis.nic.in. The judgment of the Court was delivered by Justice S. B. Sinha on 13.05.2009.
42
See, www.judis.nic.in. The judgment of the Court was delivered by Justice S. B. Sinha on 04.08.2009.

Page 15 of 21
posts for the members of the Scheduled Castes invoking Clause (4) of Article 16 of the
Constitution of India is reflected by constitutionalism, i.e., the provisions of the Constitution
of India read with the executive instructions issued by the National Capital Territory of Delhi
in this behalf which has the force of law in terms whereof only the classes of persons who
would be entitled thereto were determined.’43

In University of Kerala v. Council, Principals', Colleges, Kerala & Others,44 the Court
observed that ‘[t]he rationale of the doctrine of Separation of Powers, to my mind, is to uphold
individual liberty and rule of law. Vesting of all power in one authority obviously promotes
tyranny. Therefore, the principle of Separation of Powers has to be viewed through the prism
of constitutionalism and for upholding the goals of justice in its full magnitude.’45

In Reliance Natural Resources Ltd. v. Reliance Industries Ltd.,46 the Court observed that ‘[t]he
law is for the benefit of the people. Even where it does not work in its full measure all the time,
the public nature of law is still capable of exerting moral authority and bringing comfort to the
people. But, when law is pushed into unseen categories, effectively hidden from public gaze,
it raises suspicion especially when it purports to deal with the collective resources of the people.
When the threshold of public scrutiny is crossed, it raises vital issues regarding our continued
fealty to democratic values, constitutionalism, accountability, transparency and the rule of
law.’47

In B. P. Singhal v. Union of India,48 the Court observed that ‘[t]he doctrine of pleasure as
originally envisaged in England was a prerogative power which was unfettered. It meant that
the holder of an office under pleasure could be removed at any time, without notice, without
assigning cause, and without there being a need for any cause. But where rule of law prevails,
there is nothing like unfettered discretion or unaccountable action. The degree of need for
reason may vary. The degree of scrutiny during judicial review may vary. But the need for
reason exists. As a result when the Constitution of India provides that some offices will be held

43
Ibid., at Para 43.
44
See, www.judis.nic.in. The judgment of the Court was delivered on 11.11.2009.
45
Ibid., at Para 3.
46
See, www.judis.nic.in. The judgment of the Court was delivered on 07.05.2010.
47
Ibid., at Para 15.
48
This is a Constitutional Bench decision of the Supreme Court of India. The judgment of the Court was delivered
by Justice R. V. Raveendran on 07.05.2010.

Page 16 of 21
during the pleasure of the President, without any express limitations or restrictions, it should
however necessarily be read as being subject to the “fundamentals of constitutionalism”.’49

In G.V.K. Inds. Ltd. v. Income Tax Officer,50 the Court observed as under:

Our Constitution charges the various organs of the state with affirmative responsibilities
of protecting the interests of, the welfare of and the security of the nation. Legislative
powers are granted to enable the accomplishment of the goals of the nation. The powers
of judicial review are granted in order to ensure that legislative and executive powers are
used within the bounds specified in the Constitution. Consequently, it is imperative that
the powers so granted to various organs of the state are not restricted impermissibly by
judicial fiat such that it leads to inabilities of the organs of the State in discharging their
constitutional responsibilities. Powers that have been granted, and implied by, and borne
by the Constitutional text have to be perforce admitted. Nevertheless, the very essence of
constitutionalism is also that no organ of the state may arrogate to itself powers beyond
what is specified in the Constitution. Walking on that razors edge is the duty of the
judiciary. Judicial restraint is necessary in dealing with the powers of another coordinate
branch of the government; but restraint cannot imply abdication of the responsibility of
walking on that edge.51

The Court further observed as under:

The path to modern constitutionalism, with notions of divided and checked powers,
fundamental rights and affirmative duties of the State to protect and enhance the interests
of, welfare of, and security of the people, and a realization that “comity amongst nations”
and international peace were sine qua non for the welfare of the people was neither straight
forward, nor inevitable. It took much suffering, bloodshed, toil, tears and exploitation of
the people by their own governments and by foreign governments, both in times of peace
and in times of war, before humanity began to arrive at the conclusion that unchecked
power would sooner, rather than later, turn tyrannical against the very people who have
granted such power, and also harmful to the peaceful existence of other people in other
territories. Imperial expansion, as a result of thirst for markets and resources that the
underlying economy demanded, with colonial exploitation as the inevitable result of that
competition, and two horrific world wars are but some of the more prominent markers
along that pathway. The most tendentious use of the word sovereignty, wherein the
principles of self-determination were accepted within a nation-state but not deemed to be
available to others, was the rhetorical question raised by Adolf Hitler at the time of
annexation of Austria in 1938: “What can words like ‘independence’ or ‘sovereignty’
mean for a state of only six million?”52 We must recognize the fact that history is replete

49
Ibid., at Para 22.
50
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered by Justice B. Sudershan Reddy on 01.03.2011. Cited in Nandini Sundar v. State of
Chattisgarh, See, www.judis.nic.in. The judgment of the Court was delivered on 05.07.2011.
51
Ibid., at Para 27.
52
The Court quoted this from STANLEY A. DE SMITH, MICROSTATES AND MICRONESIA 19 (New York:

Page 17 of 21
 with instances of sovereigns who, while exercising authority on behalf of even those
people who claimed to be masters of their own realm, contradictorily claimed the authority
to exercise suzerain rights over another territory, its people and its resources, inviting
ultimately the ruin of large swaths of humanity and also the very people such sovereigns,
whether a despot or a representative organ, claimed to represent.53

In Amrik Singh Lyallpuri v. Union of India,54 the Court observed, ‘[J]udicial review has been
considered an intrinsic part of constitutionalism, any statutory provision which provides for
administrative review of a decision taken by a judicial or a quasi-judicial body is, therefore,
inconsistent with the aforesaid postulate and is unconstitutional.”55

In Indian Medical Association v. Union of India,56 the Court observed that ‘[i]t would appear
that we have now entered a strange terrain of twilight constitutionalism, wherein
constitutionally mandated goals of egalitarianism and social justice are set aside, the State is
eviscerated of its powers to effectuate social transformation, even though inequality is endemic
and human suffering is widely extant particularly amongst traditionally deprived segments of
the population, and yet private educational institutions can form their own exclusive communes
for the imparting of knowledge to youngsters, and exclude all others, despite the recognized
historical truth that it is such rules of exclusion have undermined our national capacity in the
past.’57

In Ram Jethmalani v. Union of India,58 the Court observed as under:

The scrutiny, and control, of activities, whether in the economic, social or political
contexts, by the State, in the public interest as posited by modern constitutionalism, is
substantially effectuated by the State “following the money.” In modern societies very
little gets accomplished without transfer of money. The incidence of crime, petty and
grand, like any other social phenomena is often linked to transfers of monies, small or
large. Money, in that sense, can both power, and also reward, crime. As noted by many
scholars, with increasing globalization, an ideological and social construct, in which
transactions across borders are accomplished with little or no control over the quantum,
and mode of transfers of money in exchange for various services and value rendered, both
legal and illegal, nation-states also have begun to confront complex problems of cross-

NYU Press, 1970).

53
Ibid., at Para 71.
54
Amrik Singh Lyallpuri v. Union of India, See, www.judis.nic.in. This is a Division Bench decision of the
Supreme Court of India. The judgment of the Court was delivered by Justice Asok Kumar Ganguly on 21.04.2011.
55
Ibid., at Para 16.
56
See, www.judis.nic.in. This is a Division Bench decision of the Supreme Court of India. The judgment of the
Court was delivered by Justice B. Sudershan Reddy on 12.05.2011.
57
Ibid., at Para 6.
58
See, www.judis.nic.in. The judgment of the Court was delivered on 04.07.2011.

Page 18 of 21
 border crimes of all kinds. Whether this complex web of flows of funds, instantaneously,
and in large sums is good or bad, from the perspective of lawful and desired transactions
is not at issue in the context of the matters before this Court.59

Modern constitutionalism, to which Germany is a major contributor too, especially in

terms of the basic structure doctrine, specifies that powers vested in any organ of the State
have to be exercised within the four corners of the Constitution, and further that organs
created by a constitution cannot change the identity of the constitution itself.60

[W]ithholding of information from the petitioners, or seeking to cast the relevant events
and facts in a light favourable to the State in the context of the proceedings, even though
ultimately detrimental to the essential task of protecting fundamental rights, would be
destructive to the guarantee in Clause (1) of Article 32, and substantially eviscerate the
capacity of this Court in exercising its powers contained in clause (2) of Article 32, and
those traceable to other provisions of the Constitution and broader jurisprudence of
constitutionalism, in upholding fundamental rights enshrined in Part III. In the task of
upholding of fundamental rights, the State cannot be an adversary. The State has the duty,
generally, to reveal all the facts and information in its possession to the Court, and also
provide the same to the petitioners.61

In Nandini Sundar v. State of Chattisgarh,62 the Court observed, “Consequently, we must also
bear the discipline, and the rigour of constitutionalism, the essence of which is accountability
of power, whereby the power of the people vested in any organ of the State, and its agents, can
only be used for promotion of constitutional values and vision.”63 The Court further observed,
“[M]odern constitutionalism posits that no wielder of power should be allowed to claim the
right to perpetrate state’s violence against any one, much less its own citizens, unchecked by
law, and notions of innate human dignity of every individual.”64

In Centre for Public Interest Litigation v. Union of India,65 the Court observed that ‘[l]ike any
other State action, constitutionalism must be reflected at every stage of the distribution of
natural resources. In Article 39(b) of the Constitution it has been provided that the ownership
and control of the material resources of the community should be so distributed so as to best
sub-serve the common good, but no comprehensive legislation has been enacted to generally

59
Ibid., at Para 3.
60
Ibid., at Para 64.
61
Ibid., at Para 68.
62
Nandini Sundar v. State of Chattisgarh, See, www.judis.nic.in. The judgment of the Court was delivered on
05.07.2011.
63
Ibid., at Para 1.
64
Ibid., at Para 3.
65
See, www.judis.nic.in. This is a Division Bench decision of the Supreme Court of India. The judgment of the
Court was delivered by Justice G. S. Singhvi on 02.02.2012.

Page 19 of 21
define natural resources and a framework for their protection. Of course, environment laws
enacted by Parliament and State legislatures deal with specific natural resources, i.e., Forest,
Air, Water, Costal Zones, etc.’66

In Re: Special Reference No.1 of 2012,67 the Court observed that ‘[t]he State is empowered to
distribute natural resources as they constitute public property/national assets…While
distributing natural resources the State is bound to act in consonance with the principles of
equality and public trust and ensure that no action is taken which may be detrimental to public
interest. Like any other State action, constitutionalism must be reflected at every stage of the
distribution of natural resources. In Article 39(b) of the Constitution it has been provided that
the ownership and control of the material resources of the community should be so distributed
so as to best subserve the common good, but no comprehensive legislation has been enacted to
generally define natural resources and a framework for their protection.68 The Court further
observed, “One of the most profound tenets of constitutionalism is the presumption of
constitutionality assigned to each legislation enacted”.’69

In, In Re: Ramlila Maidan Incident v. Home Secretary, Union of India,70 the Court observed
that ‘[t]he primary task of the State is to provide security to all citizens without violating human
dignity. Powers conferred upon the statutory authorities have to be, perforce, admitted.
Nonetheless, the very essence of constitutionalism is also that no organ of the State may
arrogate to itself powers beyond what is specified in the Constitution.’71

From the above analysis and discussion, it appears that the Supreme Court of India, the final
interpreter of the Constitution and the laws, has explicated the idea of constitutionalism in its
judgments but left the same undefined. There is not any judicial definition of constitutionalism
as given by the Supreme Court. Not every Constitution possesses or provides for the
constitutionalism. The notion of constitutionalism is supported by constitutionalists with a
reason that it is important for government to be organized through and constrained by a set of
constitutional rules. For most writers, constitutionalism equals to constraint, and for some it

66
Para 63.
67
See, www.judis.nic.in. This is a Constitutional Bench decision of the Supreme Court of India. The judgment of
the Court was delivered on 27.09.2012.
68
Ibid., at Para 73.
69
Ibid., at Para 80.
70
See, www.judis.nic.in. The judgment of the Court was delivered by Justice Swatanter Kumar on 23.02.2012.
Cited in Court on its own Motion v. Union of India, See, www.judis.nic.in. This is a Division Bench decision of
the Supreme Court of India. The judgment of the Court was delivered by Justice Swatanter Kumar on 13.12.2012.
71
Para 14.

Page 20 of 21
 equals to “effective regularized restraint”. Where there is a Constitution not necessarily means
that there is Constitutionalism also. But, in India, the Supreme Court has recognized this notion
so that the government may not act arbitrarily or cross its limits which is not only against the
spirit of the Constitution but also destroys the essence of the Constitution.

Page 21 of 21

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