FACULTY OF LAW

TOPIC:- CONSTITUTIONALISM
SUBMITTED TO:-MR HIMANSHU YADAV
SUBMITTED BY:- YASH
STUDENT ID:-202305889
ACKNOWLEDGEMENT

With immense pleasure and a profound sense of gratitude. I take this opportunity to express
my deep sense of gratitude to my teacher, Mr Himanshu Yadav. Faculty of Law, JMI. His
initial inspiration, constant encouraging attitude and sound guidance through every stage of
the entire work has boosted me to complete the present study successfully.I am fortunate and
feel proud of having worked under his supervision.I must also acknowledge with thanks the
help and cooperation extended to me by the different internet websites.I express my deep
sense of regard and special indebtedness to my mother who have always been a sense of
inspiration for me and have provided me with all the bits of help whenever needed.
 CONSTITUTION
 A body of fundamental principles or established precedents according to which a state
or other organization is acknowledged to be governed.
 The system of fundamental principles according to which a nation, state, corporation,
or the like, is governed.

 In Black Law Dictionary , “The fundamental and organic law of a nation or state that
establishes the institution and system of government, defines the scope of
governmental sovereign powers and guarantees individual civil rights and civil
liberties.

 CONSTITUTIONALISM

Constitutionalism can be defined as the doctrine that governs the legitimacy of government
action, and it implies something far more important than the idea of legality that requires
official conduct to be in accordance with pre-fixed legal rules.

 In other words, constitutionalism checks whether the act of a government is legitimate

and whether officials conduct their public duties in accordance with laws pre-fixed/
pre-determined in advance.
 Having a constitution alone does not secure or bring about constitutionalism.

 Except for a few states which have unwritten constitutions, today almost all the
nations/states in the world have constitutions.

 This does not, however, mean that all these states practice constitutionalism. That is
why constitutionalism is far more important than a constitution.
 DIFFERENCE BETWEEN CONSTITUTION AND CONSTITUTIONALISM

 The main difference between constitution and constitutionalism lies in the fact that the
constitution is generally a written document, created by the government (often with
the participation of the civil society), while constitutionalism is a principle and a
system of governance that respects the rule of law and limits the power of the
government.
 While constitution is often defined as the “supreme law of a country,”
constitutionalism is a system of governance under which the power of the government
is limited by the rule of law. Constitutionalism recognizes the need of limiting
concentration of power in order to protect the rights of groups and individuals.

 In such system, the power of the government can be limited by the constitution – and
by the provisions and regulations contained in it – but also by other measures and
norms. The idea of constitution has changed significantly compared to the first
examples seen in ancient Greece, while the concept of constitutionalism has grown
around the principle that the authority of the government is derived from and limited
by a set of rules and laws.

Features (Characteristics) of Constitutionalism

According to Barnett, constitutionalism embraces limitation of power (limited government),

separation of powers (checks and balances) and responsible and accountable government.
Henkin identifies popular sovereignty, rule of law, limited government, separation of powers
(checks and balances), civilian control of the military, police governed by law and judicial
control, an independent judiciary, as essential features (characteristics) of constitutionalism

We shall thus focus on the following basic elements:

• 1. Popular sovereignty

• 2. Separation of Powers (checks and balances)

• 3. Responsible and accountable government

• 4. Rule of law

• 5. An independent judiciary
 • 6. Respect for individual rights

• 7. Respect to self-determination

• 8. Civilian control of the military

• 9. Police governed by law and judicial control

Popular sovereignty

The power of such sovereign entity emanates from the public.In other words, the
public is involved in the decision making processwhich may take different forms. The
most obvious one is election of representatives. The public is entitled to elect
representatives who represent it. However, such election should be free, open
(transparent) and fair.

Separation of Powers (Checks and balances)

Under constitutionalism, power is not concentrated in any one organ of the state. It is
diffused (divided) among the three organs of the state i.e., the legislature, the executive and
the judiciary. If power is monopolized by any one organ of the state there could be abuse of
power, tyranny and dictatorship. Nor can there be liberty.

a) USA

In the United States of America, the three organs of state and their respective powers and
duties are enshrined in the constitution. Similarly the system of checks and balances is
embodied in the constitution. According to the US Constitution, Congress (i.e., the House of
Representatives) and the Senate are the sole law making power. Any bill which is initiated in
and passed by the House of Representatives shall be submitted to the Senate. The Senate shall
deliberate on the bill. If the bill is accepted by the Senate, it shall be submitted to the
President for approval. If the President approves such Bill or fails to make his objections
within 10 days (excluding Sundays), the draft bill shall become law. However, if the
President objects to the draft bill, he shall return the bill to the House where it originated
together with his objection.After the bill becomes law, it can still be subject to the scrutiny of
courts. Even though no inherent or express power is given to the courts by the Constitution,
courts are empowered to check the constitutionality of such law.If it is found contrary to the
constitution, it shall be declared null and void.Therefore, courts in USA are endowed with the
power of judicial review.The principal feature of the US Constitution is that it does not allow
an individual to exercise different powers or act in different capacities at the same time.

b) Germany

In the Federal Republic of Germany, the parliament is composed of the Bundestag which is
directly elected by the constituency and the Bundesrat which represents the different Landers.
Federal laws adopted by the Bundestag shall be submitted to the Bundesrat for its consent.

It shall become law when the Bundesrat consents or fails to make a demand for a joint
committee within three weeks (Articles 77(2) or fails to enter an objection within two weeks
(Article 77(3) or withdraws its objection or if the objection is overridden by the Bundestag.
The laws passed by the parliament after counter-signature by the federal Chancellor shall be
certified by the president and are promulgat

3- Responsible and Accountable Government

In the democratic nations (countries) people perceive their government as their own servant.
The government is there to serve their interest or act as the steward of their interest. The
governments assume office in the name and on behalf of the public for the benefit of the
public. Article 15 of the French Declaration of the Human Rights recognizes the right of the
society to ask a public official to account for his/her administration.

4- Rule of Law

Rule of law denotes a government of laws and not of men. Individuals working within the
state machinery are expected to exercise their official

duties and responsibilities in accordance with the law. In other words, rule of law represents
the supremacy of law.

According to Dicey,rule of law envisages the following:-

• No one is punishable except for a distinct breach of law established in

the ordinary legal manner before the ordinary courts of the land;

• No person is above the law;

• Courts play a vital role in protecting the rights of individuals.

5- An Independent Judiciary

Rule of law envisages a government of laws. A government is obliged to act according to

laws set by the legislature. However, if there is failure to adhere to the laws, an independent
judiciary shall check such events.

An independent judiciary is also necessary to maintain the supremacy of a constitution. If the

legislature comes up with a law which is contrary to the constitution, an independent
judiciary, through the principle of judicial or constitutional review, has the power to declare it
null and void.

6- Ensure and Respect Individual Rights

The incorporation of the rights of individuals in a constitution and other laws is essential, but
not an end by itself. It is a means to an end. It must be seen that these rights are duly
respected and protected.

Article 1 of the UN Charter included the promotion and encouragement of respect for human
rights and fundamental freedoms for all without distinction as to race, sex, language or
religion. Similarly Article 55 of the UN Charter states that the United nations shall promote
universal respect for and observance of human rights and fundamental freedoms for all
without

distinction as to race, sex, language, or religion. In addition Article 56 of the Charter imposes
obligation on member states to ensure the observance of Article 55 of the Charter.

7- Respect for Self-determination

Self-determination refers to the right of a people living in a territory to determine the political
and legal status of the territory, for example, by setting up a state of their own or by choosing
to become part of another state.

8- Civilian Control of the Military

“Our principle is the party commands the gun, and the gun must never be allowed to govern
the party.”- Mao Zedong.
 According to the above statement, the party is sovereign or autonomous. It is the party
which governs the gun (the military). To some extent the theme of Mao Zedong’s
statement seems to hold true in the contemporary world as well. In democratic
countries, it is the democratically elected officials who are allowed to govern or

control the military, although technical affairs are left to the military personne

9- Police Governed by Law and Judicial Control

The prime responsibility of ensuring peace and order is borne by the police. It shoulders the
duty of bringing wrong-doers to justice. However, when the police discharge such duties,
constitutionalism requires them to honor and respect the rights, dignity and freedoms of
individuals including wrong-doers and persons suspected of offences. It is to be noted that a

Similarities between Constitution and Constitutionalism

Constitution and constitutionalism are overlapping concepts, although the first refer to
a written body of laws and legislation and the second is a complex principle and
system of governance. Some of the similarities between the two include:

Both refer to the limits and features of the system of governance of a country.
Constitutionalism would not exist without a constitution, and a constitutional way of
governing a country requires limits and boundaries to the central authority;

Both influence the actions of both government and population. Besides providing a
framework for political and institutional structure, the constitution sets out the main
rules that all citizens should respect. Furthermore, ruling in a constitutional manner
means that the government applies the regulations outlined in the constitution to limit
and manage the citizens’ acts – always respecting individual and collective rights;

Both protect and preserve individual and collective rights, preventing the central
government from abusing of its powers and infringing on the citizens’ basic freedoms;
and Both have evolved and significantly changed during the last few centuries,

benefiting from the spread of democratic ideals and becoming key features of the
majority of Western countries.
 CONSTITUTIONAL SPIRIT

The spirit of the Constitution is defined as the aim or purpose of the Constitution when it
was written or formed.

The Preamble is considered as the Constitutional spirit of India as it includes the aims
and aspirations of the people of India who sacrificed their lives for the attainment of the
country’s Independence.

In the State (NCT of Delhi) v. Union of India (2018), the court said that:

“The constitutional functionaries owe a greater degree of responsibility towards this

eloquent instrument for it is from this document that they derive their power and
authority and, as a natural corollary, they must ensure that they cultivate and develop
a constitutional spirit where every action taken by them is governed by and is in strict
conformity with the basic tenets of the Constitution”.

Prof. B. O. Nwabueze in his book “Constitutionalism in the Emergent States, 1973

stated that “the successful working of a constitution depends upon the ’constitutional
spirit’, that is, a spirit of fair play, self-restraint and mutual accommodation of

differing interests and opinions. There can be no constitutional government unless the
wielders of power are prepared to observe the limits upon governmental powers.”

In S.R. Chaudhuri v. State of Punjab (2001), constitutional restraints must not be ignored or
bypassed if found inconvenient or bent to suit “political expediency”. We should not allow
the erosion of principles of constitutional spirit

Reference:

 Mizan Law Review by Maru Bazezew

 Legalserviceindia.com
 Blog.ipleaders.in

 www.differencebetween.net

 en.wikipedia.org/wiki/Constitutionalism