Contact us : info@onlyias.

com

OnlyIAS Nothing Else Visit : dpp.onlyias.in

Contact : +91-7007 931 912

Q.1) What do you understand about constitutionalism? Give some basic elements of constitutionalism. Substantiate
your answer with Supreme Court judgement on acceptance of constitutionalism. (10 marks 150 words)

Approach
Introduction
• What is constitutionalism in 1 line
Body
• Elaborate meaning of constitutionalism
• Write about basic element of constitutionalism
• Write about Supreme Court Judgement Substantiating Constitutionalism
Conclusion
• Summarise in 1-2 line

Introduction
Constitutionalism is a political philosophy in which the functions of government of a state must be in accordance with
the provisions of the constitution and must reflect constitutionality.
Body
The concept of constitutionalism is that of a polity governed by or under a constitution that ordains essentially limited
government. Constitutionalism means limited government or a limitation on government.
• It is the antithesis of arbitrary powers. Constitutionalism recognises the need for government with powers
but at the same time insists that limitations be placed on those powers.
• It envisages checks and balances and putting the powers of the legislature and the executive under some
restraints and not making them uncontrolled and arbitrary.

Basic elements of constitutionalism in India

There is no exhaustive list of features by which the validity or existence of constitutionalism can be tested but every
feature which limits the government proves helpful to establish a point for constitutionalism. Some basic elements
are following;
• Preamble - Preamble is the preface of the constitution, the objectives of constitution to ensure the dignified
conditions for the people, rights and liberties within the fundamental spirit of constitutionalism embodied in
entire body of the constitution.
• Judicial Review- Article 13 of Indian Constitution states that the laws which are inconsistent to part III of
constitution shall be declared null and void. In other words, it provides for judicial review. Higher Courts in
India have been empowered with power of judicial review.
• Separation of power- Different organs have been given different sets of responsibilities like legislature for law
making, executive for administration and Higher Courts empowered to look into the validity of their actions.
Article 51 talks about separation of executive from Judiciary.
• Rule of Law - Doctrine of Rule of law promotes spirit of constitutionalism and it is reflected in the various
provisions in the form of the fundamental principle of natural Justice. Supreme Court in the Indra Sawhney
case, Sampath kumar case has declared rule as the basic structure of the constitution.
• Division of power- under Article 245,246 and Schedule VII there is a clear demarcation of legislative power
among union and state government, so there is no space to use arbitrary powers over any subject.
• Fundamental rights- Articles 12-35, provide some rights to the citizens for whose infringement people may
approach Higher Courts under Articles 32 and 226 respectively, this shows that citizens have some rights to
protect themselves from the arbitrariness of government.
• Independent judiciary – To protect supremacy of the constitution and to settle the disputes between centre
and states or between states.
• Secularism- it reflects that the state has no religion, means every citizen has a right to profess religion of their
own choice, which automatically promotes liberty of faith and worship.

DMP 2023_DAY 2 1
 Contact us : info@onlyias.com

OnlyIAS Nothing Else Visit : dpp.onlyias.in

Contact : +91-7007 931 912

• Directive Principle of State policy -They are for promoting ideals of social and economic democracy. They seek
to establish a welfare state. In the Minerva Mill Case Supreme Court held that the Indian Constitution is
founded on the bedrock of balance between fundamental Rights and DPSP.

Supreme Court Judgements substantiating Constitutionalism

The Supreme Court is a federal court and highest court of appeal. It acts as guarantor of fundamental rights of citizens
and guardian of the constitution. Thus fulfilling its duty, it promotes constitutionalism and evidences of which can be
gleaned from following cases:
• Kesavananda Bharati case- Supreme Court came out with doctrine of Basic structure of constitution. It placed
limitations on amending power of Parliament and stated that it cannot take away any feature that forms the
basic structure of the constitution.
• S.R. Bommai case- Supreme Court upheld Secularism as basic structure of Constitution and placed conditions
for imposition of president rule in the states curtailing action on the whims of Governor and central govt.
• Minerva Mill case- Portions of 42 constitutional amendment which were extending scope of Article 31C giving
nd

primacy to all DPSP against Fundamental Rights were declared unconstitutional by the Supreme Court.
• The Supreme Court Advocates-on-Record Association case - Supreme Court quashed 99 constitutional th

amendment act, which talked about National Judicial Appointments Commission on the ground that it may
compromise Independence of Judiciary and independent judiciary is a basic feature of Indian Constitution.
• K. Puttaswamy case- SC accorded right to privacy a status of Fundamental right under article 21 (right to life
and liberty). It advances the scope of individual freedom. Violation of this right can be addressed by higher
courts. SC also pronounced some conditionality which must be there before taking away a person’s right to
privacy.
• Rajendra N. Shah case – Supreme Court struck down portion of 97 constitutional amendment dealing with
th

part IX B of the constitution related to cooperative societies on the ground of lack of ratification by half of the
state legislature as per demand of Article 368(2) of constitution.
• NALSA case - in this landmark judgement Supreme court upheld constitutional morality by granting
Transgender right to equality under Article 14, have freedom of expression under Article 19 and right to liberty
under Article 21.
• Sabarimala Judgement- Court said that exclusion on the ground of biological features like menstruation was
unconstitutional, notion that menstruation is related to impurity is tantamount to a kind of untouchability and
stigmatised women. Thus declared practice of exclusion violative of right to equality and Article 14.

Conclusion
The Supreme Court as a final interpreter of the constitution interpreted in a way that kept pace with time and
maintained its dynamism without altering basic essence and fundamental meaning thus making the constitution an
organic living document and emboldening the constitutionalism.

DMP 2023_DAY 2 2