Define and Differentitate : Constitution and Constitutionalism. UPSC Law Optional.

Constitution

The constitution is an organic living document it consists of arrangements that determine the political, legal and social structures by which the society is to be governed. Its provision is considered fundamental and supreme law in our country

Its outlook and expression as perceived and expressed by the interpreters of the constitution must be dynamic and keep pace with changing time and lean in favour, in case of conflict, in favour of the weaker or the needy. (St of WB v. Kesoram insustries ltd, 2004)

It has also been defined as:

· Basic norm (or law) of the state:

· System of integration and organisation of norms and laws;

· Organisation of the govt

Constitution is a source of, and not an exercise of, legislative power. (Pratap Singh v. St of Jharkhand, 2005)

According to Wheare ‘constitutions spring from a belief in ltd govt’

Features Of Constitution:

· Parliamentary form of govt- provides with parliamentary gorm of govt at the centre and every state, and president of India is head with nominal powers

· Written & detailed form of govt- lengthiest constitution written in the world, consisting of 395 articles 22 parts and 8 schedules then, now 448 articles 25 parts, 12 schedules.

· Judicial Review- power of SC and HCs under art. 137 if any law or action is violative then it can be declared unconstitutional or invalid by the court.

· Republic and secular- elected representative is the head of state. No religion of the nation, freedom to practice any religion.

· Adult suffrage- attainment of adulthood, right to vote

· Independent judiciary- no interference of other bodies. Interpreter and guardian of the constitution

· Single citizenship- citizen of whole India and not a particular state.

Constitutionalism

Constitutionalism envisages checks and balances and putting powers of legislature and executive under some restraints and not making them uncontrolled and arbitrary. And this principle has been recognised in judiciary in the case of I.R Coelho v State of TN, 2007

As unlimited powers jeopardise freedom of people. (Power corrupts and absolute power corrupts absolutely). If the constitution confers unrestrained power on either legislature or executive, it might lead to authoritarian, oppressive govt. Therefore, to preserve the basic freedom, of individual and to maintain his dignity and personality constitution should be permeated with constitutionalism; it should have some in built restrictions on the powers conferred by it on governmental organs.

Constitutionalism connotes in essence ltd govt or a limitation on govt. constitutionalism is antithesis of despotism. 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. (Maru Ram v. UOI, 1981)

Constitutionalism idea isn’t new. Deeply embedded in human thought. Natural philosophers such as Aquinas. Paine, Locke, Grotius and Rosseau have promoted through their writings. The Magna Carter 1215 strengthened the traditional view that law is supreme.

Some of the principles and norms which promote constitutionalism in a country are:

· Written constitution;

· independent judiciary with judicial review powers;

· doctrine of ROL and SOP;

· free legislation elections;

· accountable and transparent democratic govt;

· FR;

· Federalism;

· decentralization of power;

Constitution v Constitutionalism

A country may have constitution but not necessarily constitutionalism. Eg- country with a dictatorship where his word is law, can be said to have ‘constitution but not constitutionalism.’

Underlying difference between the two concepts id that constitution out not merely confer powers on various organs of the govt, but also seek to restrain those powers. Constitutionalism recognises the need for govt but insists upon limitations being placed upon govt powers.

When a country seeks to decentralise power instead of concentrating it at one point, and also imposes other restraints and limitations thereon, does a country have not only constitution but constitutionalism.