Introduction
What is a Constitution?
The Oxford Advanced Learner’s Dictionary defines a ‘constitution’ as “the system of laws and basic principles that a state, a country or an organization is governed by”.
According to Schwartz, the word Constitution means “a written organic instrument, under which governmental powers are both conferred and circumscribed”.
According to Wheare, “Constitutions spring from a belief in limited government.”
A Constitution means a document having a special legal sanctity which sets out the framework and the principal functions of the organs of the government of a state and declares the principles governing the operation of those organs.
Thus, a Constitution is the living body of law. It gives out the various rights of the individuals and lays down the duties of the governments.
A constitution is the supreme law of the land and all the other laws owe their validity to it.
A Constitution determines the basis of the legal framework of a country. It is a living body of rules capable of evolving alongwith time.
Thus, it is the basic principle on which the edifice of any organization or country rests. It is the supreme legal authority.
A written Constitution has more power and authority as compared to an unwritten one. Thus, it is the basis of a country.
Constitutionalism
The Oxford Advanced Learner’s Dictionary defines constitutionalism as “a belief in constitutional government”.
While a constitution ought not merely confer powers on various organs of government but also seek to restrain those powers, constitutionalism recognizes the need for government but insists upon limitations being placed upon governmental powers. Constitutionalism envisages checks and balances and putting the powers of the legislature and the executive under some restraints and not making them uncontrolled and arbitrary.
Unlimited power jeopardizes freedom of the people. If the constitution confers unrestrained power on either the legislature or the executive, it might lead to an authoritarian, oppressive government. Therefore, to preserve the basic freedoms of the individual, and to maintain his dignity and personality, the constitution should be permeated with constitutionalism; it should have some inbuilt restrictions on the powers conferred by it on the government organs.
“Constitutionalism” connotes in essence limited government or a limitation on government. Constitutionalism is the antithesis of arbitrary powers. Constitutionalism recognizes the need for government with powers but at the same time insists that limitations be placed on those powers. The antithesis of constitutionalism is despotism. Unlimited power may lead to an authoritarian, oppressive, government which jeopardizes the freedoms of the people. Only when the constitution of a country seeks to decentralize power instead of concentrating it at one point, and also imposes other restraints and limitations thereon, does a country have not only constitution but also constitutionalism.
The term “Constitutionalism” connotes limited government and brings sense to the protection of individual’s rights.
In I.R. Coelho v State of Tamil Nadu[1], the Supreme Court has defined the concept of constitutionalism in the following manner:
The principle of constitutionalism 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 separation of powers; it requires diffusion of powers, necessitating different independent centers of decision making. Under the controlled constitution, the principles of checks and
balances have an important role to play. 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 the main feature of the common law constitutionalism.[2]
1. Individual’s rights
Every civilized society recognizes that an individual has got some basic rights which are inherent in his very human nature. He enjoys those rights on virtue of the fact that he is born as a human being. These are the human rights or the fundamental rights and are inalienable from the human existence.
The United Nations Charter lays down a number of provisions for the protection and promotion of individual’s rights.
The Universal Declaration of Human Rights, 1948 provides protection for the various rights of the individuals. Articles 2 to 21 deal with the civil and political rights which have been globally recognized. Articles 22 to 27 deal with economic and social rights.
Article 3 provides the right to life, liberty and security. Article 7 provides equality before law and equal protection of laws without any discrimination. Article 12 provides the right to privacy, freedom, home and correspondence.
Article 18 of the Declaration provides the right to freedom of thought, conscience and religion. Article 19 gives the right to freedom of opinion and expression.
The Individual’s rights are different from the collective rights as in case of individual’s rights even a single person can claim for their protection while a collective right requires that a group of individuals must be present for claiming them.
The protection of the individual’s rights is the basic duty of every civilized society because without the protection of these rights a society cannot sustain itself.
Protection of fundamental rights under the Constitution
A written constitution lays down the various individual’s rights and makes the provision for their protection. Part III of the Constitution of India deals with the chapter of fundamental rights.
The Constitution expressly lays down the provisions for the protection of the fundamental rights. The fundamental rights are to be protected from the encroachment by the state authorities. For that purpose, the very first Article of the chapter on fundamental rights defines what all bodies constitute a state. Article 13 of the Constitution declares all laws in contravention of fundamental rights void and unconstitutional.
The fundamental rights guaranteed under the Constitution can be broadly classified in six categories.
(1) The right to equality- Articles 14 to 18 of the Constitution lay down the provisions relating to the equality of individuals. All forms of discrimination on the basis of religion, caste, sex or place of birth are forbidden under the provisions of these Articles.
(2) The right to freedom- Articles 19 to 22 of the Constitution provide the various freedoms to the individuals. Article 19 gives the freedom of speech and expression, of residence, of movement, of association. Article 21 gives the freedom of life and liberty. Article 22 protects from arrest in certain cases.
(3) The right against exploitation- Articles 23 and 24 provide the right against exploitation in all forms. Article 23 forbids traffic in human beings and forced labour. Article 24 provides measures for protecting children from exploitation.
(4) The right to freedom of religion- Articles 25 to 28 lay down the provisions relating to freedom of religion and conscience. Article 25 gives the freedom of conscience and freedom of free profession, practice and propagation of religion. Article 28 prohibits religious instructions in educational institutions maintained by the government.
(5) Cultural and educational rights- Articles 29 and 30 give the rights to the minorities to protect their culture and to establish and administer educational institutions. Article 29 confers a right on the religious, linguistic and cultural minorities to protect their language or culture. Article 30 gives rights to the minorities to establish and administer educational institutions of their choice.
(6) The right to Constitutional remedies- Articles 32 to 35 and 226 provide constitutional remedy for the violation of the fundamental rights. Under the provisions of Article 32, the Supreme Court can be moved in cases of violation of fundamental rights while under the provisions of Article 226, a person can move the High Courts for the protection of fundamental rights.
Thus, the Constitution of India lays down express provisions not only as to what the rights of individuals are but also lays down provisions for the protection of the same.
The fundamental rights of individuals are protected under the provisions of the Constitution itself and cannot be infringed by any law. Any law which infringes these rights is unconstitutional and void.
Judicial review
The doctrine of judicial review means that the constitution is the supreme law of the land and any law inconsistent with it is void. The courts perform the role of expounding the provisions of the constitution and exercise power of declaring any law or administrative action which may be inconsistent with the constitution as unconstitutional and hence void. This judicial function stems from a feeling that a system based on a written constitution can hardly be effective in practice without an authoritative, independent and impartial arbiter of constitutional issues and also that it is necessary to restrain governmental organs from exercising powers which may not be sanctioned by the constitution.
The Constitution of India explicitly establishes the doctrine of judicial review in several Articles such as 13, 32, 131, 132, 133, 134, 135, 136, 143, 226 and 246. The doctrine of judicial review is thus firmly rooted in India and has the explicit sanction of the Constitution.
In State of Madras v. Row[3], the Supreme Court stated that the Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution and that the courts “face up to such important and none too easy task not out of any desire to tilt at legislative authority in a crusader’s spirit, but in the discharge of duty plainly laid upon them by the Constitution.”
The court further observed that: “While the court naturally attaches great weight to the legislative judgement, it cannot desert its own duty to determine finally the constitutionality of the impugned statute.”
In Kesavanand Bharti v. State of Kerala[4], Justice Khanna observed that “As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by these rights are not contravened………..Judicial review has thus become an integral part of our Constitutional system….”
In Minerva Mills[5], Justice Bhagwati observed that: “It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. This is the essence of the rule of law, which inter alia requires that ‘the exercise of powers by the government whether it be legislature or the executive or any other authority, be conditioned by the Constitution and
the law’. The power of judicial review is an integral part of our constitutional system….the power of judicial review is unquestionably part of the basic structure of the Constitution.”
In S. S. Bola v. B.D. Sharma[6], Justice Ramaswami has observed that: “The founding fathers very wisely, therefore, incorporated in the Constitution itself the provisions of judicial review so as to maintain the balance of federalism, to protect the fundamental rights and fundamental freedoms guaranteed to the citizens and to afford a useful weapon for availability, availment and enjoyment of equality, liberty and fundamental freedoms and to help create a healthy nationalism. The function of judicial review is a part of the constitutional interpretation itself. It adjusts the constitution to meet new conditions and needs of the time.”
Thus, the courts in India cannot be accused of usurping the function of constitutional adjudication; it is a function which has been imposed on them the Constitution itself.
Conclusion
The doctrine of Constitutionalism is based on the principles of limited powers of the government. It provides for the protection of the individual’s rights.
The Constitution of India provides measures for the protection of the rights of the individuals and the judiciary is the custodian of the fundamental rights.
The principle of Constitutionalism encourages the rights of individuals and strikes against any arbitrary action on the part of the government. Thus, the protection of fundamental rights is the primary quality of the doctrine of constitutionalism.
Thus, The principle of Constitutionalism is based on the protection of individual’s rights and provides strict provisions to prevent the infringement of the same.
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