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 norms
creating, structuring and defining the limits of the government, power and authority.
Our constitution, a unique document, is not a mere pedantic legal text; it embodies
human values, cherished principles, and spiritual norms. It uphold the dignity of man
Bachan Singh v. State of Punjab1. Constitutionalism is the idea, often associated with
the political theories of John Locke and the "founders" of the American republic, that
government can and should be legally limited in its powers, and that its authority
depends on its observing these limitations. Constitutionalism is the limitation of
government by law, as prescribed by a constitution. Constitutionalism implies also a
balance between the power of the government on the one hand and the right of
individuals on the other.

Constitutionalism is a system of government based on the supremacy of the

constitution, democratic government, separation of powers, checks and balances,
judicial independence and protection of individual rights; the rule of law describes a
condition of government in which the supremacy of democratically made laws, equality
before law, procedural justice and effective constraints on government arbitrariness all
existing 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 legal
limitation on government; it is the antithesis of arbitrary rule”. Another eminent scholar
ofc ons titut
iona l l
aw,Howa rdJ ayGra ham,ha sobs er vedt ha t“ cons
tit
ut i
ona li
sm. ..ist he
art and the process of assimilating and converting statute and precedent, ideals and
aspirations, into the forms and the Rule of Law—into a Fundamental and Supreme L a w”.
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 about
what constitutionalism means. Giovanni Sartori defines liberal constitutionalism as
constituting the following elements: (1) there is a higher law, either written or
unwritten, called constitution; (2) there is judicial review; (3) there is an independent
judiciary comprised of independent judges dedicated to legal reasoning; (4) possibly,
there is due process of law; and, most basically, (5) there is a binding procedure
establishing 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

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

II. The Concept

According to the theorist a further important feature of constitutionalism is that the rule
imposing limit upon the governments power must be in some way be entrenched either
by law or by the way of constitutional creation. In other words those whose powers are
constitutionally limited, i.e. the organ of govt. must not be legally entitled to change or
expunge those limit at their pleasure. The central element of the concept of
constitutionalism is that in political society government officials are not free to do
anything they please in any manner they choose; they are bound to observe both the
limitations 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 of
constitutionalism is rule of law3.

Now if we need to discuss the concept of constitutionalism it is very important to

4
discuss John Austin theory of law, it say ‘
law is a command of sovereign’ .He further
define sovereign as political superior. He categorised the law given by superior to
inferior. Hec a
ll
edi t‘
‘posi
tivemor a li
ty’’
.He called it positive because it was given by
man to man and it was definite and certain. Heca l
ledit‘mor ali
ty’becaus eitwa sba c ked
by legal sanction. Austi
n’svi
ewofsanction in this concept is correlative with command.
The relation of command, sanction and duty can be better explained through an
example:
“Do not drive fast otherwis
ey ouwi llbec ha l
le
ng ed”.
“Donotdr iv
efast ”isacomma ndofa sitisa nauthor i
tati
veex pressi
onofdes i r
e.
“Ot herwi sey ouwi l
lbec hal
lenged”i sadut ya si tsigni
fiedt heobnox iousness/liability
to the evil.
“Cha llan”isas anc ti
ona si
tistheev ilitsel
f.

Nowa swedi scuss edJ ohnAus t

inhi scent rali
dear evolv esaround‘s overei
g n’
. This word
has a significance in terms of an idea of constitutionalism because sovereign is a theme
of constitutionalism. Although the conception of austinian theory do not fix into the
democratic form of government but still the idea behind sovereign has much to do with
the concept of constitutionalism. If you wanted to discuss constitutionalism it is
important to know the concept of sovereignty. This term sovereignty can be defined as,
supreme authority, especially over a state, self government and a political
independence of a state. As per the constitution of India We, The People Of India, are
SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC. This interpretation gave a
wide 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.

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people and it now directly says sovereign are the people of the country. It is the people
who have adopted, enacted and given to themselves the constitution. The source of
Indian constitution is the people of the India. Parliamentary supremacy is the idea
behind this sovereignty and supreme law is people’ s constitution. There are some
features 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 borrowed
fundament rights and supreme court from U.S.A.DPSP from Ireland, Emergency
provision from Germany, Fundamental duties from Russia, Distribution of legislative
power from Canada and G.O.I Act 1935 besides they borrowed G.O.I Act
1935,sovereignty of people, Republican government, secular polity, fundamental rights
and duties, directive principle of the state policy, judicial review, Universal adult
franchise and unique blend of flexibility and rigidity.

Now it is important to discuss the concept of constitutionalism by summarizing the

concept of law given by Kelson5. He says Law is a hierarchy of norms, ultimately every
legal norm in a given legal order deduces its validity from a basic norm, i.e.
“Grundnor m” . what is a Grundnorm? It is a structure of hierarchy of norms which
derivest hei rva l
i
dit
yf rom ba s i
cnor m whi chhet ermeda s‘Gr oundnor m’ . Now if we are
to analyze constitutionalism as per kelsons view then constitution may be called as
grundnorm as we derive all our laws from it. It is mother act as it also creates rights and
duties, wherever there are right and duties, limitations are there to maintain check and
balance. This outset of constitutionalism had source called constitution, which is parent
act from where we get each and every rights, duties and statutes for the governance
and rule of law.

For our purpose, constitutionalism (as a descriptive concept) means a system of political
arrangements in which there is a supreme law (generally called "constitution"), in which
all (particularly the entire system of government) is governed by the supreme law, in
which only the people's will (as defined through some pre-specified institutional
procedure, usually through a super-majority voting mechanism) can supersede and
change the supreme law, in which changes can only be made infrequently due to the
difficulty of garnering the requisite popular support, and in which there are separation
of power, checks and balances and an independent judiciary dedicated to legal
reasoning to safeguard the supremacy of the constitution. To elaborate this point we
need to discuss the statement made by the famous jurist Savigny, founder of the
historical school of law. He says Law grows with a nation, strengthen with it and dies at

5
Ke l
son’ sma i
nwor k
sinc
ludea
ust
ri
anc
ons
ti
tut
ion(
1920)
;ThePur
eThe
oryofL
aw(
1934)
;Re
vis
edT
heor
y
of Pure Law(1960).

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its dissolution. His theory is basically a product of general conciousness of people and
manifestation 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 defines
constitutionalism as constituting the following elements: (1) government according to
the constitution; (2) separation of power; (3) sovereignty of the people and democratic
government; (4) constitutional review; (5) independent judiciary; (6) limited government
subject to a bill of individual rights; (7) controlling the police. In context of Indian
constitutionalism basic principle and elements involved with the constitution of India
are Sovereignty, Democratic Republican character ,justice (social, economic and
political),Liberty of thought, belief and expression, Equality of status and opportunity
and Fraternity assuring the dignity of the individual and the unity and integrity of the
nation which have been elaborately discussed in the different parts of the constitution.
It has been further i nt erpretedbyt heHon’ blesupr emec ourti nKes hv a nandbha r
ativ.
7
state of kerala in majority opinion C.J.Sikri declares that the Basic Structure of the
constitution of India is not amendable and therefore parliament has no power to amend
the basic structure of the constitution. Basic structure is been illustrated as(i)supremacy
of the constitution,(ii)republican and democratic form of govt.,(iii)secular character of
the constitution,(iv)separation of power(v)federal character of the constitution. We can
use the American Constitution to illustrate the two components of constitutionalism.
The original 1787 American Constitution was mainly concerned with power construction
and power lodging The American Constitution was amended in 1791 to add the Bill of
Rights, which strengthened the rights protection function of the constitution. The initial
Bill of Rights contained ten clauses: from the First Amendment to the Tenth
Amendment. Additional Amendments were added throughout the last two centuries to
provide additional protection for individual rights and to improve the power structure of
the government. Using the American Constitution as an example, we now analyze each
component of the liberal constitution more carefully. Under power construction and
power lodging, the two key concepts are “ sepa ra t
ion ofpower ”and “ checks and
balances” . In the United States, one of the key authorities and the ultimate authority
that the courts rely on in conducting judicial review is the American Constitution.
American courts have the power to invalidate legislative or administrative acts of other
departments for violations of the Constitution. American courts also enjoy the exclusive
right to interpret the Constitution. These are generally true both at the federal level and
at the state level. That is, similar to federal courts, state courts usually have the power
to interpret state constitutions and review acts of state legislatures and other branches
of the state governments. Because of the power of independent judicial review,
American courts, consisting of independent judges dedicated to legal reasoning, become

6
Quot
edf
romS
avi
gny
’ses
say‘
VomBer
uf’
.
7
A.I.R 1973.SC1461.

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a bulwark against legislative and administrative encroachments on the letter and spirit
of 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, several
meanings of the word "constitution" are listed as, a body of fundamental principles or
established precedents according to which a state or other organization is
acknowledged to be governed. In 621 BC, a scribe named Draco wrote the laws of the
city-state of Athens; and being quite cruel, this code prescribed the death penalty for
any offence. In 594 BC, Solon, the ruler of Athens, created the new Solonian
Constitution. It eased the burden of the workers, however it made the ruling class to be
determined by wealth (plutocracy), rather than by birth (aristocracy). Cleisthenes again
reformed the Athenian constitution and set it on a democratic footing in 508 BC. The
most basic definition he used to describe a constitution in general terms was "the
arrangement of the offices in a state". In his works Constitution of Athens, Politics, and
Nicomachean Ethics he explores different constitutions of his day, including those of
Athens, Sparta, and Carthage. He classified both what he regarded as good and bad
constitutions, and came to the conclusion that the best constitution was a mixed
system, including monarchic, aristocratic, and democratic elements. He also
distinguished between citizens, who had the exclusive opportunity to participate in the
state, and non-citizens and slaves who did not. The Romans first codified their
constitution in 449 BC as the Twelve Tables. They operated under a series of laws that
were added from time to time, but Roman law was never reorganised into a single code
until the Codex Theodosianus (AD 438); later, in the Eastern Empire the Codex repetitæ
prælectionis (A.D. 534) was highly influential throughout Europe. This was followed in
the east by the Ecloga of Leo III the Isaurian (740) and the Basilica of Basil I (878).The
Edicts of Ashoka established constitutional principles for that 3rd century BCE Maurya
king's rule in Ancient India. Aristotle (ca 350 BC) was one of the first in recorded history
to make a formal distinction between ordinary law and constitutional law, establishing
ideas of constitution and constitutionalism, and attempting to classify different forms of
constitutional government.

Constitutionalism is the limitation of government by law, as prescribed by a

constitution. Constitutionalism implies also a balance between the power of the
government on the one hand and the rights of individuals on the other. In the Roman
Empire the word in its Latin form became the technical term for acts of legislation by
the emperor, and from Roman law the Church borrowed it and applied it to religious
regulations for the whole Church or for some particular religious province. It is quite
clear from this statements that Greek attitude towards the fundamental relations of
government 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.

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whose central theme is the problem of "constitutionalism" — of all Plato's dialogues the
one most directly concerned with the subject we have now in hand. The central
ideology discussed in the Politicus is the proper relation of government to law. Plato has
been 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 the
Politicus is wholly beyond comprehension. If one should disregard Plato's plain
statements of his purpose in the Republic, it is perhaps conceivable that one might
distort that dialogue into a defense of actual arbitrary governments; yet the whole
discussion in the Politicus plainly shows that this is not Plato's true position but the very
antithesis of it. A godlike ruler should rule like a god, and if a godlike man should appear
among men, godlike rule would and should be gladly conceded to him. This was
Aristotle's view, and he may well have got it from the teachings of Plato. It is of little
consequence 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 warrant
him in speaking of monarchy, aristocracy, and a constitutional democracy as forms of
government, sadly defective indeed, but true; in comparison with the three
corresponding perverted forms, in all of which men totally devoid of any "strength of
art" superior to the law — the only justification of despotism — have nevertheless made
their 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 secular
enactments of the time. In England the famous Constitutions of Clarendon of 1164 were
referred to by Henry II and others as "constitutions," avitae constitutiones or leges, a
recordatio vel recognitio of the relations purporting to have existed between church and
state in the time of Henry's grandfather, Henry I. But in substance these were clerical
provisions even though they were promulgated by secular authority, and this may
account for the application to them of the word "constitutions." The word, however, is
often 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 for
a secular administrative enactment.As just noted, the Constitutions of Clarendon are
referred 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 after
the appearance of Henry I's well-known writ for the holding of the hundred and county
courts, 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 grand
assize as legalis ista constitutio, and calls the assize of novel disseisin both a recognitio
and a constitutio. Bracton, writing a few years after the statute of Merton of 1236, calls
one of its provisions a "new constitution," and refers to a section of Magna Carta
reissued in 1225 as constitutio libertatis. In France about the same time Beaumanoir
speaks 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 in
reality 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 this
Kingdom, which is jus publicum regni" — in reality includes two conceptions of a

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constitution closely connected and at times combined, but nevertheless distinct in
character. One appears in Whitelocke's first words, "the natural frame of the state," and
this idea seems as old as the politeia of the Greeks, which we usually translate by our
word "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 as
ancient as the former, but it is very old. Cicero, for example, voices it in his De Re Publica
in 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 equability
without which men can hardly remain free for any length of time."9 This above
mentioned historical aspect shows, how the conception of constitutionalism emerged
and developed through different phases.

IV. Medeival Approach

The medieval model of constitutionalism is often associated with Magna Carta (1215); in
it, the constitutionalistic idea that personal liberties should be protected from the
authority of the prince by established legal procedures was already present. But the
medieval contributions to constitutional theory may be found in the sphere of
ecclesiology under the label of conciliarism. Conciliarism was the idea that the pope was
not an absolute ruler but a constitutional monarch whose authority was ministerial and
delegated to him for the common good of the church. The ultimate authority in the
church, then, resides in the whole body of the believers or their representatives—
namely, the general council. According to twelfth-century canonists, who grappled with
the questions surrounding the possible abuse of power by the pope, the pope was an
inherent part of a general council and the authority of the pope with a general council
was greater than without: an argument parallel to the secular idea of the supremacy of
the king-in-parliament. The divine nature of papal authority did not necessarily result in
theocratic absolutism because of the idea that the power of jurisdiction came from God
through the people; the power of the papal office originates from God, but the choice of
a 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 next
the development of English governmental institutions goes on apace, and some
incidental light on their spirit could no doubt be got from a careful study of the
contemporary records of the law cases which now become available. But of the true
character of the general principles underlying the medieval English constitution there is
no indication so clear as the book on the laws and customs of England by Henry of
Bratton, or Bracton — the greatest of medieval books on English law and
constitutionalism, if not on the law of any European nation. Bracton's book is a book of
case 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 origins
and development of constitution theory.

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without doubt that case law is almost entirely an English law. But no attentive reader of
the book can miss in it the great influence of a jurisprudence that is far older and far
wider than any mere "law of reason secondary," and "particular" to England."If for one
moment we set his [Bracton's] book beside the Customs of Beauvais and the Saxon
Mirror," says Maitland, one fact worthy of note stares us in the face. The Englishman's
work both in its general structure and in many details has been influenced by Roman
jurisprudence. Really if we place ourselves in the thirteenth century and look only at the
surface of things, it must seem very likely that England will soon adopt Roman law as a
whole, 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 in
England of a centralized royal justice was rapid, exceptional and looking closer we see
that Bracton had no intention of supplanting English by Roman law. It is Rationalism
rather than Romanism that he learnt from Azo's book, and this fact that at an early date
English law was rationalized by an able man, is not the least among the causes which
protected us against Romanism in the following centuries. Other instances of the same
view might be given almost without number, and before 1627 we find it asserted at
times even by the men who in later years were to be its most arduous opponents. As
late as 1621 Sir Edward Coke himself admitted that there was a prerogative
"indisputable." Sir Edward Crawley in the ship-money case contrasted this with the
ordinary 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 arcanum
imperii, "not fit for the tongue of any lawyer," while he professed that in his "private
prerogative" he was always willing to submit to the judgment of the courts. Hobbes had
the same distinction in mind in his difference between "matter of polity" and matter of
law10.

V. Modern Approach

Constitutionalism is a terminology used in an ambiguous way, virtually every political

theorist of modern period described constitution in there own terms. In fact many
political thinkers accepted that constitution is a pre-requisite to a legitimate
government but undoubtedly it also create representation for society as a whole. What
nearly everyone represent or share, though, is the thought that modern societies need a
constitution in order to be properly constructed. St. Thomas Aquinas argued that God
had provided a mixed government for Israel, and had done well. The Jewish state, he
said, preserved the advantages of monarchy but escaped corruption into tyranny; it
employed 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.

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the stability which results when all have some share in the government. John of Paris
believed that monarchy should be mixed with aristocracy and democracy. However, this
was a literary tradition which only occasionally, as during the Conciliar controversy and
in the Italian republics, touched the political life of the time. The conception of
monarchy in the classical mixed state was in fact entirely alien to the medieval idea of
kingship. What was called the monarchic element in Sparta and in republican Rome was
nothing but a magistracy. Aristotle called the Spartan kings mere generals for life and
classified 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 a
personal tie between king and subject. To describe this, the Middle Ages resorted to
Aristotle'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 own
purposes; 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 state
fell in the third category. Forced to choose among the regimen despoticum, the regimen
regale, and the regimen politicum, medieval writers fixed upon the regimen regale. This
sentiment by no means supplies a full philosophy of justice. It deals with the form rather
than the content of legislation11. A. V. Dicey, in describing the virtues of the English "rule
of law" in his Law of the Constitution, spoke of the enthusiasm which greeted the fall of
the 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 England
hailed the triumph of the French populace with a fervour which to Englishmen of the
twentieth century is at first sight hardly comprehensible. ... Its fate was felt, and felt
truly, to herald in for the rest of Europe that rule of law which already existed in
England."Yet the debtors can hardly have felt this generous glow. It surely makes a
difference what the laws are which rule. Men have always thought so. Various
substantive theories of justice have existed from time to time, but these have
complemented rather than supplied the constitutionalist tradition. To the Greeks, the
proper legal rules for religion prescribed piety toward the local gods. To Aquinas, they
prescribed Catholic orthodoxy. Since the seventeenth century, freedom of worship has
progressively gained ground. No one of these attitudes is inextricably associated with
constitutionalism. It is true that modern liberalism and revived constitutionalism came
into the world together, and have in some degree been associated with each other, but
they can by no means be identified.

Nevertheless attempts have been made, since Dicey popularized the expression "rule of
law" in 1885, to put the authority of Aristotle and the long tradition of constitutionalism
behind one or another local opinion. Dicey himself equated the rule of law to the
decision of cases by common law courts, in particular opposition to the administrative
justice of the continent, blandly ignoring the fact that the Rechtstaat, with its Roman
law 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 key
constitutional concepts.

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

When the Constitution of India was adopted on November 26, 1949 by the Constituent
Assembly, its members were mindful of the challenges of governance. Speaking after
the completion of his work, Dr. B.R. Ambedkar, Chairman of the Constitution Drafting
Commi ttee,s aid:“If eeltha ttheCons tit
ut i
oni swor kable; it is flexible and it is strong
enough to hold the country together both in peacetime and in wartime. Yet there were
great expectations that in the years to come, the Constitution would move from a
document worthy of admiration to a solid commitment on the part of power holders. It
has a ability of Constitutions to act as limitations on the exercise of power, and in that
process delineate the functions of the government and outline the rights of the people,
that distinguishes them from other legislation. The experience of 60 years of
constitutional governance helps us understand the working of the Constitution in
general and the role of the judiciary in particular. Constitution is a mother act and a
grund norm, as said by kelson a great legal scholar. To satisfy the basic conception ”F or
this, the framers intended to fulfil the basic needs of citizens, and hoped that it would
bring about fundamental changes in the structure of Indian society. The theme of social
revolution runs throughout the proceedings and documents of the Constituent
Assembly. This theme formed the basis of the decision to adopt the parliamentary form
of government and direct elections, the fundamental rights, the directive principles of
state policy, and many of the executive, legislative, and judicial provisions of the
Constitution. Although the social revolution theme was adopted throughout the
Constitution, Parts III and IV fundamental rights and directive principles of state policy
demonstrate the core of this commitment. These are perceived notions of the
Constitution, because they provide the base for human rights and human development

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policies for governance. The Constitution ensures that the fundamental rights are
guaranteed as a matter of legal obligation rather than as a political concession. These
are basic human rights and have been interpreted as civil, political, economic, social and
cultural rights. Articles 12-35 of Part III elaborate on the fundamental rights. Articles 36-
51out l
inet hef ra mer s’v i
sionf org oodg ov er
na nce and they constitute the directive
principles of state policy. To enforce both of these part it is essential to strengthen
judiciary, a significant and trust worthy institution in democracy. Judicial review an
imperative tool of developing judicial system was evolved by the American courts for
the very first time in Marlbury v. Madison12, Justice marshall placed the doctrine and
says that judges are directed by the constitution itself, took oath to support the
constitution, which constitutes the paramount law of the land. It is a duty placed upon
judges to review any law which is repugnant to the constitution. Seven year later in
Flether v. Peck13, Supreme Court asserted its judicial reviewing power over both federal
and state laws and thereby securing for itself the role of chief interpreter and arbiter of
constitution. Similarly in Indian constitution article 32 and 226 gave wide powers to
Supreme Court and High court respectively. Nevertheless, in several cases, it has held
that the Supreme court can act as the custodian, defender of rights of people and
democratic system of government only through the judicial review. In Keshvanand
Bhar ti’
sc as e14, i
twa shel dt ha tthejudi cialrevi
ewi sa‘ ba sicf
eature’of the constitution
and cannot be amended. The scope of judicial review is sufficient in India, to make
Supreme 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 of
judicial review can be used to maintain separation of power and supremacy of
constitution, the two important notion of Justice, whenever any of the organ
transgresses 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 to
become 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 a
minimal guarantee for the justice of both the content and the form of law and, finally, is
itself safeguarded by the rule of law. This, in my view, constitutes a relatively complete
depiction of the relationship between constitutionalism and the rule of law.
Constitutionalism is also safeguarded by the rule of law in another sense. For
constitutional provisions to be meaningfully and effectively operative, there must be an
institutional 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.

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

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BIBLIOGRAPHY

1. Constitutionalism — Entry in the online Stanford Encyclopedia of

Philosophy.

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.
Shuk
la’
s,Constitution of India.Preamble P.1.

6.Kel
son’sma i
nwor ksincludea ustr
ianc onstitution(1920);The Pure
Theory of Law(1934);Revised Theory of Pure Law(1960).

7.
Quot
edf
rom S
avi
gny
’ses
say‘
Vom Ber
uf’
.

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 constitution
theory.

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. LEXIS

322.
13.I.R.COELHO V. STATE OF TAMIL NADU, AIR 2007 SC861

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