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Constitutionalism: A Comparative Vision

– Parth Mangal

Constitutionalism: A Comparative Vision

Introduction

The concept of constitutionalism, which is commonly interpreted as “restriction on the powers of government,” is at the center of the normative principles that appear to bind contemporary constitutions. The term “constitutionalism” has been applied in a variety of contexts, including the study of constitutions. Such applications give the phrase a theoretically empty appearance, raising the worry that it can “degenerate into an empty slogan.“ In this article, we debunk constitutionalism and examine the concepts that give it significance. We will examine three interpretations of constitutionalism: as an ‘ism’, as a check on governmental power, and as a vision for change that seeks to lead the society from a past of oppression to a present of freedom.

Constitutionalism as an ‘ism’

    A mindset or a pattern of behavior founded on a theory or idea is frequently referred to by the suffix “ism.” According to this interpretation, constitutionalism would describe a way of acting that is founded on the constitution. This transforms constitutionalism into “a compound of ideology (constitution) and its proponents (constitutionalists).”

    Here, the type of attitude, behavior, or action will rely on the theory’s tenets. As a result, constitutionalism would be reliant on its provisions. Constitutionalism, thus, does not seem to have any normative value from this angle. The definition of its boundaries is reliant on the text of the constitution. Even nominal constitutions that leave room for the despotic rule would still have some form of constitutionalism in this situation. But history has proven otherwise. People do not like having all the power concentrated in one place and being able to use that authority without limitations, which is why modern constitutions have become more popular, especially after World War II. This dissatisfaction gives birth to the desire to restrict and decentralize authority.

    Constitutionalism as a check on governmental power

    The above-mentioned pain is related to three problems: having a power concentrate, giving the power concentrate to one thing, and enabling that creature to use those powers without restriction. Modern constitutions must address each of these concerns. By addressing each of the following problems, they aim to limit the scope of the government’s authority within the concept of constitutionalism.

    Through the distribution of powers, we divide the concentrated power into legislative, executive, and judicial power. Legislative, executive, and judicial branches make up the structure of the government. The legislature takes on the role of the principal actor in the area of law-making, the executive is given the role of the principal actor in the area of law enforcement and daily governmental operations, and the judiciary is assigned the responsibility of the principal actor in the area of law interpretation and conflict resolution. The goal of this division of powers and assigning them to different organs is to prevent any one body from possessing absolute power. However, it must be made clear that these 3 organs do not function independently or as separate repositories of power. Our constitution has enabled some powers to permeate between these organs by giving the President under Article 123 of the constitution, the authority to declare ordinances or giving the Speaker under Article 110(3) of the constitution, the authority to make the final judgement regarding money bill issues or disagreements under the tenth schedule of the constitution.

    Furthermore, by structuring the nation in a federal framework, power may be constrained. We can assign distinct jurisdiction (both territory and pertaining jurisdiction) at the several levels of government, including the Union, State, and Local Government (Panchayat or Municipality,) and distribute the powers at each level. All three of the governing bodies are created and assigned specific roles at each level of government. Limiting the authority of the government is made possible by the division and system of checks and balances, as well as through establishing rules of jurisdiction. The fundamental rights framework further restricts how the various governmental entities can exercise their authority at different levels of government. “Any act of the State that violates, infringes or is inconsistent with any of the fundamental rights becomes void.” In addition to these formal restrictions, the establishment of constitutional procedures also limits governmental authority. Simply because a certain organ of government has been given a certain type of authority does not give that organ of government permission to utilise that power in whatever it pleases.

    The constitutionally established procedures and protocols must be followed for the deployment of authority to be considered lawful. The Supreme Court cannot hear cases involving legal rights under Article 32, and neither may the Parliament adopt a statute without first submitting it as a Bill. Acting within the parameters outlined in the granting of power makes the exercise of that power lawful.

    Overall, what we’ve done so far addressed the discomfort that led to the desire to restrict authority. We have now documented everything in writing. Writing down every aspect of limitation results in a text or texts that can be used as the foundation for all discussions. Even if the written word may be subject to several interpretations, it nonetheless shields us from the uncertainty that oral and verbal traditions could introduce. Through modifications or authoritative court readings, the arguments and opinions about the text’s content can also be included in the printed document. Waldron, who believes that “written-ness allows the constitution to have a palpable presence in the polity,” acknowledges the significance of written constitutions.

    Once the restrictions have been noted, we make sure that neither the legislative nor executive branches are permitted to decide whether the laws they passed or the acts they took were legitimate or constitutional. The court is granted the authority to determine whether laws and governmental actions are constitutional and legal. Additionally, the judiciary’s impartiality and independence are maintained.

    In this case, constitutionalism acquires prescriptive content that is different from the ideas of particular constitutions. It demands that constitutional restrictions on governmental power be included. The restrictions that constitutions impose frequently differ in their structure, content, and breadth, as may be seen from a comparison of the world’s constitutions. Constitutions that meaningfully restrict the powers of governments and bar anyone from asserting absolute sovereignty may be said to possess both a constitution and constitutionalism.

    Transformative Constitutionalism

    Constitutionalism, which is defined as “restrictions on governmental powers,” might assist countries in avoiding tyrannical control. However, it depends on the goals of the authorities and leaves the general welfare and well-being to them. It assures that certain activities cannot be done by the government as a restriction. However, the purpose of constitutions is to both limit and strengthen the government. The goal of giving the government more authority is to provide it with the ability to act in the best interests of the populace. The Preamble, Fundamental Rights, Directive Principles, and Fundamental Duties, all refer to the aims of national life.

    Constitutions would need to establish obligations on government bodies to prioritise the welfare of the populace under transformative constitutionalism. A constitutional paradigm and view known as “transformative constitutionalism” strive to fundamentally alter society, especially with regard to disadvantaged or marginalized people in the past. Instead of only serving as a set of laws for the government, it entails using the Constitution as a vehicle for social change. Using the Constitution to advance the social and economic rights of formerly oppressed groups, like access to healthcare, education, shelter, and work, is the practice of transformative constitutionalism. In order to change the lives of those who were subject to colonial control and turn them from passive recipients to engaged citizens, the Indian constitution has an approach to enhance. The people of India have made a solemn commitment to ensuring justice, freedom, equality, and fraternity for all of its citizens and integrating these values into daily life. Article 21’s definition of “life and personal liberty” has been expanded, and the locus standi requirements, which refers to the right to bring a legal action or challenge, have been loosened to make it easier to approach the courts. Individuals or groups may move to the Supreme Court or the High Court, respectively, for the enforcement of their fundamental rights, in accordance with Articles 32 and 226 of the Constitution. These demonstrate the efforts that have been made to realize the revolutionary idea of the constitution.

    Conclusion

    The bounds of a country have not held the principles of constitutionalism. Since 1945, in the wake of the Second World War, more nation-states have embraced constitutionalism’s core principles, such as the restriction of governmental power, the rule of law, the protection of fundamental rights, etc. These principles are now accepted as the organizing basis of national life in an increasing number of nations. In addition, constitutional norms have moved from one country to another as a result of both the drafting of constitutions and the meaning attached to those documents. Debates over the protection of socio-economic rights, the safeguarding of privacy and the recognition of the uniqueness and right to dignity of impuissant and vulnerable communities has cut across national boundaries. We must be more careful in our attempts when transferring values from one jurisdiction to other as constitutional standards become more general. These topics must be carefully examined before dealing with their substantial substance in either way that is meaningful. In the meanwhile, we must recognize the necessity of upholding our constitutional values. All participants in all governmental entities must understand that they don’t end in and of themselves. The application of constitutions necessitates a dedication to both the founding principles and the objectives of these frameworks.

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    H. M. Höpfl, ISMS: British Journal of Political Science Cambridge Core (2009), https://www.cambridge.org/core/journals/british-journal-of-political-science/article/abs/isms/36C46DBC3F69FB510E33A0D6C6888DFF (last visited Nov 29, 2022).

    William P. Marshall, ELEVEN REASONS WHY PRESIDENTIAL POWER INEVITABLY EXPANDS AND WHY IT MATTERS (2008),

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    Legal culture and transformative constitutionalism, Taylor & Francis (1998), https://www.tandfonline.com/doi/abs/10.1080/02587203.1998.11834974 (last visited Nov 29, 2022).

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