Constitutionalism Nature and Scope: DR Shiva Sharda

CONSTITUTIONALISM
Nature and Scope

Dr Shiva Sharda
Meaning
 Rules creating legislative, executive and
judicial powers, but that these rules
impose limits on those powers
 Individual or group rights against
government, rights to things like free
expression, association, equality and due
process of law.
 Government limited by law
FACETS
 equalityand due process of law.
 Constitutional limits: scope of
authority
 procedural requirements governing
the form and manner of legislation.
 Government can/should be limited in
its powers and authority depends on
observing these limitations.
Contd..
 Thomas Hobbes and John Locke propounded constitutionally unlimited
sovereignty versus that of sovereignty limited by the terms of a social
contract containing substantive limitations.
 John Austin who, like Hobbes, thought that the very notion of limited
sovereignty is incoherent.
 For Austin, all law is the command of a sovereign person or body of

persons, and so the notion that the sovereign could be limited by law
requires a sovereign who is self-binding, who commands him/her/itself.
 This can be applied to the British Parliamentary system, where Parliament

is often said to be "supreme" and constitutionally unlimited.
 Other constitutional democracies such as one finds in the United States

and Germany, where it is clear that the powers of government are legally
limited by a constitution.
Features
 Sovereign - i.e., "the people" - remains unlimited.
 Rules imposing limits upon government power must be in
some way be entrenched, either by law or by way of
"constitutional convention." organs of government - must
not be legally entitled to change or expunge those limits
at their pleasure.
 Though the UK doesn’t have written constitution as the
American Constitution(1789). Magna Carta (1215
A.D.),The Petition of Right (1628) and the Bill of Rights
(1689).
Constitutionalism in India
 Rule of law
 Independence of judiciary
 Checks and Balances
 Preamble
 Separation of powers
BASIC STRUCTURE OF THE CONSTITUTION
Constitution (42nd Amendment) Act,
1976
 Section 55 of the Amendment Act Article 368, clauses (4)
and (5) :
 "368(4) No amendment of this Constitution (including
the provisions of Part III) made or purporting to have
been made under this article whether before or after the
commencement Constitution (Forty-second Amendment)
Act, 1976 shall be called in question in any court on any
ground.
 (5) For the removal of doubts, it is hereby declared that
there shall be no limitation whatever on the
constituent power of Parliament to amend by way
of addition, variation or repeal the provisions of
this Constitution under this article."
(39th Amendment) Act, 1975
Sub-clauses (4) and (5) of Article 329A

 "(4) No law made by Parliament before the commencement of the
Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to
election petitions and matters connected therewith, shall apply or shall be
deemed ever to have applied to or in relation to the election of any such
person as is referred to in Clause (1) to either House of Parliament and
such election shall not be deemed to be void or ever to have become void
on any ground on which such election could be declared to be void or has,
before such commencement, been declared to be void under any such law
and notwithstanding any order made by any court, before such
commencement, declaring such election to be void, such election shall
continue to be valid in all respects and any such order and any finding on
which such order is based shall be and shall be deemed always to have
been void and of no effect.
 (5) Any appeal or cross appeal against any such order of any court as is
referred to in Clause (4) pending immediately before the commencement
of the Constitution (Thirty-ninth Amendment) Act, 1975, before the
Supreme Court shall be disposed of in conformity with the provisions of
Clause (4)."
Menaka Gandhi v. Union of India [(1978) 1
SCC 248
 Bench of Seven Judges held that the procedure
established by law in Article 21 had to be reasonable and
not violative of Article 14.
 L. Chandra Kumar v. Union of India & Ors. [(1997) 3 SCC

261] that power of judicial review is an integral and
essential feature of the Constitution constituting the basic
part, the jurisdiction so conferred on the High Courts
and the Supreme Court is a part of inviolable basic
structure of Constitution of India.
Justice Sabharwal
 The principle of constitutionalism is now a legal principle which
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 the separation of powers, it requires a
diffusion of powers, necessitating different independent centers of
decision making. 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.

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CONSTITUTIONALISM

Nature and Scope

 For Austin, all law is the command of a sovereign person or body of

 This can be applied to the British Parliamentary system, where Parliament

 Other constitutional democracies such as one finds in the United States

Sub-clauses (4) and (5) of Article 329A

 L. Chandra Kumar v. Union of India & Ors. [(1997) 3 SCC

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