Constitutionalism ,Dimensions of constitutionalism ,features of constitutionalism ,Parliamentary democracy,Independent Judiciary ,Fundamental Rights ,Fundamental duties ,Secularism ,Nature of constitution,Single citizenship ,Criticisms against our Constitution
- Why do we need constitutionalism?
- The state had come into existence to prevent entropy. Citizens had come together voluntarily and created the state. There is also an upward delegation of power from citizens to the state. The state has been given the responsibility of protecting and promoting the rights of citizens and also maximizing their welfare.
- For example- The legislature is given the power to make legislation, the executive to implement them and the judiciary to review them for their constitutional validity
- According to Thomas Hobbes, a famous British political Philosopher, over some time the state has become a "Leviathan" i.e. those who are part of the state instead of working for the welfare of citizens started working against their interests. They started acquiring more power unto themselves. The relationship between the state and the citizens is a two-person zero-sum game i.e the state can acquire more powers only at the cost of the freedoms and rights of citizens.
- Power corrupts and absolute power corrupts absolutely. If absolute power is given to a state it can result in the dictatorship of the state. The concept of constitutionalism has come into existence to prevent such as scenario.
- Constitutionalism can be defined from various dimensions
Dimensions of constitutionalism
- In simple terms, constitutionalism means strict implementation of rule of law in both letter and spirit i.e. rule of law should be there in reality also. The law must protect honest and responsible citizens and strong punishment for those who violate the law
- Another dimension of constitutionalism is Fundamental Rights. Our constitutional forefathers defined the entire essence of our constitution in terms of the Fundamental rights of the citizens. Constitutionalism can be defined in terms of the ability of the state to protect and promote the Fundamental Rights of the citizens
- Constitutionalism can be defined in terms of Limited government i.e. none of the organs of the state should have absolute powers. In our constitutional democracy, the three organs of the state i.e. legislature, executive, and Judiciary are supreme in their domain but are not sovereign. It is the constitution that can be considered a sovereign document. These three organs of the state derive their power from the constitution and they have only limited power
- Constitutionalism can also be defined as having inherent checks and balances within the system so that none of the organs of the state can become dictatorial in their functioning. For example- Judiciary has the power to declare any law null and void if it violates the Fundamental rights of the citizens (Article 13). Legislature has the power to ensure continuous accountability of executives (Passing of Budget, confidence, and No-confidence motions). Similarly, parliament has the power to define the boundaries of judicial functioning through various legislations. It ensures proper checks and balances within the system
- Finally, constitutionalism can be defined as the sovereignty of citizens. All three organs of the state derive their power from the constitution which is framed by citizens of the country. In a constitutional democracy, Citizens are sovereign as they have the ability to remove governments through elections.
Important features of constitutionalism
- Written constitution
- Separation of powers between three organs of the state
- Independent Judiciary
- Judicial review
- Federal form of democracy.
- Civilian control over Army
- Rule of Law
- Civilian control over Law enforcement agencies
- In our parliamentary democracy, all these features are present but it must be remembered they should be present in both letter and spirit. It is said that in India they are primarily present in letters but not fully in spirit due to many weaknesses in the functioning of our institutions.
- For example- More than 48 million cases are pending at different levels in our judicial systems.
- 43.5% of MPs in Lok Sabha have criminal records
- Reforms should be implemented in the functioning of various institutions to ensure constitutionalism in both letter and spirit
Parliamentary democracy
- In a parliamentary democracy, the executive comes from the legislature and is accountable to the legislature
- India has opted for parliamentary democracy over the presidential form of government because it ensures continuous accountability of the council of ministers headed by the Prime minister to the legislature
Federal form of democracy
- Our constitutional forefathers have realized the fact that such a large and diverse country as India can not be governed from a single place. They have opted for a federal polity with the division of powers between the Union and state governments
- In 1992, Federalism was further expanded to include the third tier in the form of local self-governments
Independent Judiciary
- Our constitutional forefathers have made sure that the judiciary would remain independent of the legislature and executive. It is given the most important function of Judicial review to ensure constitutionalism
- Any law which restricts the scope of fundamental rights can be declared null and void by our judiciary
Fundamental Rights
- The essence of our entire constitution lies in FRs. They are necessary for the effective functioning of democracy.
- They protect citizens from the dictation of the executive but none of the FRs is absolute
- The state can impose reasonable restrictions
Fundamental duties
- These are not part of the original constitution.
- They have been added by the 42nd Constitutional amendment act. They define the duties of citizens like respecting the constitutions, national flag, and national Anthem, protecting the sovereignty of the country, and so on.
Secularism
- Our constitutional forefathers had realized the fact that unity and integrity of a country are possible only when the country is truly secular i.e. the state does not differentiate between the people based on their religion. It recognizes all religions and treats them equally
Directive Principles of State Policy
- These DPSPs provide guidelines to the executive while formulating public policies
- They are not legally enforceable.
- Violation of DPSPs can not be questioned in a court of Law because they are only directives
Nature of constitution
- It is both Rigid and flexible
- It is rigid because some provisions of the constitution require a special majority to make any changes to them whereas the rest of them require a simple majority on the floor of the house
Single citizenship
- Our constitutional forefathers realized that it is possible to ensure the unity and integrity of the nation only with single citizenship
- Having multiple identities can create problems in ensuring the unity and integrity of our nation
Emergency provisions
- Emergency provisions have been included to face extraordinary situations whenever the country's sovereignty is threatened by external forces or law & order problems are created internally these emergency provisions can be used to restore normalcy
Criticisms against our Constitution
- The critics claimed that the Constituent Assembly was not a sovereign body
- Many critics believe that the Indian Constitution contains nothing new and original. Critics described it as a ‘borrowed Constitution’
- The Indian Constitution, critics claim, is un-Gandhian because it lacks the ideology and principles of Mahatma Gandhi, the father of the Indian nation.
- The critics felt that the Indian Constitution was too legalistic and very complicated. Sir Ivor Jennings, a British Constitutionalist, called it a “lawyer’s paradise”.
- Critics commented that the Indian constitution was dominated by the Congress only
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