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Reading Material for Indian Constitution and Human Rights (IH-201)

CONSTITUTIONALISM IN THEORY AND PRACTICE

 The constitution may also perform the function of a national symbol. It may
articulate the ideals and aspirations of a people. These are programmatic
constitutions which act as the vehicles for social revolution and social renaissance
or for political development and modernization. The Constitution of India falls
under this category,(i.e. programmatic constitution). Because there are directive
principles of state policy laid down by it to realise certain socio-economic ideals.

 Constitutionalism means a system in which governmental powers are to be


exercised in accordance with certain well established as well as set procedures as
laid down in the constitution.
 It implies the fact that law is more important than the individual.
 Constitutionalism helps in checking the arbitrary actions of the government.
 Here constitution means principles that outline the relations between the
government and the governed.
 Struggle for constitutionalism was fought in England, France and several other
European countries
 The result is Glorious revolution (1688), Magna Carta (1215), Declaration of Rights
and French Revolution (1789).
 In the western world, constutionalism has been inter-linked with democratic form
of government. Western nations view constitutionalism from the angle of
observance of laws. They wish the areas of operation of civilized government are
well preserved and not transgressed unnecessarily.

Constitutionalism means:-
 Equality before law
 Change in political system by peaceful means and methods
 Freedom of press
 Rule of law

 In the erstwhile U.S.S.R constitutionalism was closely linked with state political
ideology. It was based on the principle of class struggle.
 In China, constitution has been made part of party manifesto and thus
constitutionalism means promoting party ideology.
 The communist world does not believe that constitutionalism can be pressed with
the help of parliamentary/democracy system as it prevails in the western world.
 Developing countries have their own problems. Constitutionalism in these countries
does not have the same meaning as it has in developed countries. They have to yet
adjust their love for traditionalism with the present trend of modernism; they are
yet to decide about sphere of state activity. They are yet to get political stability.

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 Though the concept of constitutionalism varies from society to society, yet its
strength can be measured with the help of four important indicators, that is;
1. Basic rights and liberties of the people.
2. Independence of judiciary.
3. Constitutional jurisdictions- which include power of courts of law to
review the laws of the government.
4. The extent of decentralization of powers.
 In western societies, usually people are given freedom of thought, speech and action
and right to life, liberty and property. In communist societies, they are even given
right to work.
 In the most of the western countries (especially federation), the court of law are
given the power of judicial review and independence of judiciary. Decentralization
of power is inevitable in every form of government (either unitary/ federal).

Constitutionalism and practice

 In theory, constitutionalism seems to be excellent because everyone cherishes


that he should be equal before law and no organ of the government should
transgress its limit, and his/her rights and liberties are to be fully protected. But
in actual practice, constitutionalism faces several problems. It is hindered very
much by social-economic-political inequalities which exist everywhere. Because
of these inequalities, poor and weaker sections are deprived of their rights and
liberties. They can’t claim these demands. Laws are not taking care of them.
Political, social and economic institutions which are to uphold constitutionalism
are controlled by rich and elites of the societies.
 Constitutionalism is completely violated during emergencies and wars. These
days it is either demolished or eclipsed. It also comes under heavy strain when
nation is passing through economic and political issues. Government has been
given wider by power to deal with these crises. Constitutionalism does not have
any meaning in totalitarian states.
 The constitutionalism can’t be operated fully as long as social, economic and
political disparities prevail in the system.

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Executive

In all forms of the government, executive performs many important functions:

Broad sense: functionaries that execute laws at


all levels
Executive
Narrow sense: heads of all departments and their close associates who run
government machinery.
 Real executive –where the executive is vested with all powers and he
exercises them. e.g.:-president of USA.
 Nominal executive is the one in which the powers are vested, but not used by
it. e.g.:-president of INDIA.
 In parliamentary form of government, the PM exercises all executive powers even
though he is not vested with powers.
 Real executive can be singular or plural.
 President of USA falls under singular category
 President of Switzerland falls under the plural form category
 In Switzerland, executive consists of seven councilors and one of them
is elected as president by nation.
 Executive can be political, when the life of the executive depends on the co-
operation and strength of the political party to which the executive belongs.
 (The executive has to no fixed term e.g.-cabinet in parliamentary form
of government.)
 In president form of the government, the executive has fixed term.
e.g.:-president of USA, the executive continues in office till superannuation.
 The civil servants come under this category. They should be politically
neutral.
 The executive can be totalitarian, which comes to power somehow and
remains in power as long as it can manage to do so.

Functions of the executive:-

 Real executive is required to maintain law and order.


 Save country from foreign aggression.
 To see that departments are in perfect cooperation with each other at
work.
 Proper distribution of work among depts.
 To give leadership to the country.
 Proper implementation of laws.
 To remove outdated laws and update them.

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 Approving all bills and ordinance in a parliamentary system of


government before being sent to the president.
 Consists and guides permanent executive and gives that policy
guidelines.
 To see the economy in a state conditions and polity in stable condition
and social harmony.

Executive in India

o Parliamentary form of government.


o President-nominal head
o -tenure 5 years.
o PM – real head.
o PM + council of ministers
 Cabinet - takes all policy decision
 Function on collective responsibility.
 Resignation of PM = resignation of the whole council of ministers.
 Meetings are presided by the PM.
 The council of ministers remains in power as long it enjoys the confidence of the
majority party or parties in LS.
 Council of ministers is collectively responsible to the LS for all its actions of
commission.
 It makes all high appointments in India and abroad.
 Prepares national budget.
 Looks after the interests of Indians abroad.

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Reading Material for Indian Constitution and Human Rights (IH-201)

CONSTITUTIONALISM

1. Meaning of constitutionalism

Constitutionalism is a body of normative principles that seeks to realize the dominant


political values of the western world. These values can be realized by means of institutional
arrangements.

 These values are not static.

 Constitutionalism is a principle that the exercise of political power shall be bounded


by rules which lay down the procedure.

 These rules determine the validity of legislature and executive action. These rules
curb the arbitrary exercise of political power.

 Political constitutionalism is based upon a common belief in limited government


and in the constitution.

 Political constitutionalism is concerned with the theory and practice of


constitutional governments. The history of it goes back to the limitation of absolute
power by the constitutional principles/rules.

 Constitutional governments refer to rule by law, but not by men. The exercise of
their power is limited. The essence of constitutionalism rests in it. And also in
certain amount of diffusion of power.

 According to Andrew, “power in constitutional government is proscribed and


procedure is prescribed.”

 Constitutionalism involves two-fold relationship:

1. Relationship between the government and citizens.

2. Relationship between one authority and another authority

 Constitutionalism is based on the principle of shared power. When the power is


shared between several independent power holders or state organs while exercising
their political powers, it means the power is controlled; the functions assigned to
them are subject to reciprocal control.

 It would be inconvenient if all the actions of the power-holders are subject to


controls by the constitutional ruler. The rulers/power holders must have a larger
autonomy to perform their functions without internal interference.

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 A specific pattern of government is dependent upon the degree of such autonomy


and interdependence of several power holders.

 The reciprocal interdependence of several power holders cannot be symmetrical


and perfectly matched. The degrees of autonomy and interdependence vary from one
political system to another.

Example: In the USA, government and parliament are practically autonomous. They are
required to cooperate as the constitution prescribed i.e. interdependence by coordination.

Under the technique of shared and controlled power, an open circuit is established. In that
circuit, different competitive ideologies and the social forces are free to play.

NATURE OF CONSTITUTIONS

 The classification of political systems into autocratic and the constitutional


democratic is based on the techniques used in sharing the exercise of political
power among the power holders

 These power holders are below the supreme power holder i.e. the electorate.
Electorate is the ultimate arbiter of political system.

 In order to protect the people from the arbitrary exercise of power by power
holders, there is a need for built in mechanism in the political system. As a part of it
certain restraints are imposed on the exercise of the power through a set of fixed
rules in the constitution. Thus a constitution is the basic instrumentality of power-
control.

 Power being the central concept in the modern political analysis, the constitution
can be seen as a political institution arrangement for the legitimate and effective
exercise of political power.

 According to Herman Finer, the state is a group of human beings that is ruled by a
certain relationship between its individual and associated constituents. This power
is embodied in the political institution.

 Classical writers like Lord Bryce, Strong and KC (Kenneth Clinton) Wheare
(Australian Academic) looked upon a constitution in terms of the institutional organ
of the political system. But the modern writers viewed the constitution as restraint
on and control of political power. The normative aspect is very clearly discernible in
this thinking. Such a constitution is the hallmark of a democratic constitutional
political system.

 Neumann says that all states have constitutions, but all states do not observe
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Reading Material for Indian Constitution and Human Rights (IH-201)

constitutionalism. In autocratic and despotic states, the constitution is utilized by


rulers to exploit the people. In such states the constitution serves pseudo-
constitutional purposes by guiding political action channels desired by the
autocrat/despot.

CLASSIFICATIONS OF CONSTITUTIONS:

 A classification of constitutions is necessary to understanding a peculiar character of


particular constitutions.

 Classification of Constitutions is done by traditional as well as modern thinkers.

 Some of classificatory schemes are:

1. Written and Unwritten Constitutions.

2. Flexible and Rigid Constitutions.

3. Monarchial and Republican Constitutions.

4. Parliamentary and Non-parliamentary Constitutions.

5. Federal and Unitary state organizations

Karl Loewenstein (German philosopher and political scientist), classified into---

(A) Original and derivative

(B) Programmatic

(C) Nominal

(D) Semantic

LESLIE ARTHUR WOLF-PHILLIPS- (British political scientist) --made a typology of


Constitutions

1. Codified and Uncodified Constitution:

- on the basis of the degree and comprehensiveness of codification of integration of


law and circumstances of its origin.

- This classification is an improvement upon the written/unwritten categorization of the


classical writers.

2. Conditional and unconditional- is based on the formal procedure for change.

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3. Another classification of constitutions is into superior and subordinate constitutions. It


is based on the relationship of constitutions to the legislature.

4. Rigid and flexible constitutions- this classification is not based on the conventional
lines but on the significance of actual change of the constitution.

Example- American and Swiss Constitution – Rigid

British Constitution--- Flexible

5. Indigenous and adventitious Constitutions: This classification is similar to the


classification of Lowenstein classification into original and derivative constitution.

The criterion of classification is the genesis of the constitution i.e. whether native and
convertible to domestic culture.

Eg.UK Constitution-Indigenous category

Indian Constitution- Adventitious Category. Many things borrowed from foreign countries.

6. Manifest and latent Constitutions: A manifest constitution specifies and recognizes


the fundamental and vital elements of the political processes, like the constitutional role
of political parties.

Example: The Socialist Constitution of the former USSR; The fundamental role of the
Communist Party of Soviet Union (CPSU) is specified in the constitutional document.

On the other hand, a latent Constitution does not specify and recognize the fundamental
and vital elements of political process.

Example: The US Constitution recognizes neither the role of political parties nor interest
group.

7. Presidential Executive Constitution and Parliamentary Executive Constitution: The


classification is based on the head of the government. It is also dependent upon the
legislature for his power/authority and what the method of his election is.

8. Monarchial and Republican Constitution:- The classification is based on two things:

a) The institutionalization of monarchy within the constitutional framework.

(b) Its settled and stable existence and legitimacy.

9. Bicameral and unicameral Constitutions:

Does the second chamber have a federal function?

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If it is a part of a unitary state organ what was the raison d’etre of its original constitution?

Are those reasons still valid?

10. Competitive and Consolidatory Constitution:-

Consolidatory Constitution seeks to consolidate the effective rule of any one person or
group in a non-competitive position in the system.

Example: - Socialist –Constitutions.

Almost all western constitutions are rigid and fragile.

11. Programmatic and Confirmatory Constitutions:-

The basis of classification is to what extent the constitutional particularization represents


accomplished fact as distinct from proposed action.

In a programmatic constitution certain aims are declared and certain standards are
stipulated.

Example- Constitution of India, Mexico.

Example for a confirmatory constitution is USSR constitution of 1936. Because it was to


confirm the fact of building up of socialism and to record the results so far achieved.

12. Justiciable and nugatory constitutions:-

The distinction relates to the degree of enforceability of the constitution.

If the constitution provides for the redressal of the grievances of the people and certain
power/authority is given to office holders to protect them, then it can be called justiciable
constitution.

13. The final classification of the more useful of the traditional categories i.e. Federal and
Unitary constitution

The criteria of classification are: What is the nature of the federal solutions? What were
the reasons advanced for a federal solution in the drafting of the constitution? The federal
unitary distinction is looked upon as a spectrum, not as a clear dichotomy.

Conclusion: - A final conclusion is not reached on the classification of constitution.

(a)Theoretical attributes and functional techniques of constitutionalism:-

Constitutionalism is a principle that the exercise of political power is bounded by rules that
determine the validity of legislative and executive function.
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The rules may be conventional norms like in the UK or directions/prohibitions laid


down by constitution of India.

Constitutionalism becomes a reality to the extent that these rules curb the arbitrary
exercise of power and permit significant scope for the enjoyment of individual
liberty.

Political systems differ in the extent to which they wish to impose limitations. These
limitations may be enforced by various means like judicial review or special administrative
justice. In short, constitutional government invokes elaborate rules of political procedure
and jurisdiction.

Theoretically, Constitutional government will have certain attributes.

1. It is characterized by discussions of power.

2. Constitutional government involves the general acceptance of plurality of


interests in society.

3. No single organized institutions can monopolize authoritative leadership in


society.

4. Such a system of government seeks to minimize governmental constraint an


individual freedoms and liberties.

Karl Loewenstein:-The ethos of any constitution must be seen in the articulation of


devices for limitation and control of power. The purpose of constitutionalism is not only to
liberate people from the absolute control of power holders, but also to give legitimate share
to them in the power process.

Lowenstein mentions the following functional principles of constitutionalism.

1. Differentiation of state functions and the assignment of these functions to


different organs/ political structures.

2. Planned mechanism achieves cooperation among several power holders.

Example: - Checks and balances in the American political system.

3. Mechanism to avoid frictions and deadlock between power-holders.

4. A method to adjust to changing socio-political conditions peacefully, to avoid


illegality, violence and revolution.

5. Incorporation of fundamental liberties.

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Techniques of control:-

Horizontal categorization:-

1. Inter-organ control: - If the control operates between power-holders.

2. Intra-organ control: - If the control operates within an organ of the individual powers.

The vertical structure of controls operates between the totality of the constituted power
holders and socio-political forces of the society. These powerholders conduct
governmental process. The socio-political forces of the state/society act on the bases of
territory, plurality or individuality.

CONSTITUTIONAL-MAKING AND CONSTITUTIONAL AMENDMENT

What is constitution? = a+b+c

(a) Constitution provides for a basic institutional framework to a political system.


Within which the dynamic process of government and politics can operate and
political power is exercised and political power is exercised and political
allocations take place.

K.C. Wheare authored a book titled “Modern Constitutions” in 1951

(b) A constitution can enforce particular roles on the power-holders in a society. It can
also possess a symbiotic capability because it is also regarded as a showcase of the norms
and symbols of a given a society.

(c) A constitutional is not merely a functional instrumentality but also focus for the
evolution of the law –making, law changing, law----- adjudicating and law-enforcing
institutions. Therefore, the social context and political culture of a country are important in
shaping a constitution and determining its course of working.

 A truly living constitution must grow from legitimizing process and from an existing
consensus that embodies at least some substantive and most procedural concerns of
the govt. It means it is the prevailing consensus of attitude and beliefs which sustain
a constitutional framework provide the necessary support and give a sense of
legitimate authority. This will tell us the importance of constitution-making in a
society.

 The constitutional rules may be stored in the memory of political community


(people) scattered in a variety of documents or written down on a single document.

 These rules comes into being through a long course of historical evolution or
through deliberate design by a representative convention or assembly or by will of
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effective rule holders in a society.

 The legitimacy, acceptability and the normative quality of the constitution will
largely depend on the specific technique/ method is a resultant of the configuration
of socio-political forces at that time.

 Initially a constitution may be legally, legitimate and highly acceptable. In course of


time, it may not be suitable to changing circumstances and to realities. There is a
need to adapt it to the changing circumstances and to the newly recognised values.
In a world of changing patterns and dynamics relations, the stability of a society
depends on its ability to recognize and accept the need for change. The success of a
political system depends on a satisfactory balancing between stability and change.
This balancing can be probed by a viable system of constitutional dynamics.

 If the existing constitution is not living up to new changes it becomes nominal. It is


no longer normative to change it from nominal to normal; there is some built-in
mechanism available in the system i.e. constitutional amendment. Through
amending the constitution, we can make it adapt to the new socio-political
environment.

 The alternative to a constitutional change is revolution.

 An unalterable constitution is the worst form of tyranny.

CONSTITUENT-ASSEMBLY: MACHINERY FOR CONSTITUTION=MAKING AND


AMENDMENT:-

 A written constitution is a document for articulating and formalizing the basic


ordering of a state-society.

 The task of constituent assembly is to draft a constitution for its country.


Historically, constituent assembly is a constitution of Europe to the ethics and
technique of a definite phase of social revolution. It is seen to be constituted as a
constitution –making machinery before the transfer of power from an alien
government to a home government by an agreement or forcible seizure of power.

 The advantages of constitution-making and constitutional amendments through


representative assembly are:

 It ensures the reflection and representation of the internets of a large segment of the
political community.

 It imparts to the written constitution which comes after prolonged debates and

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mature deliberations.

 It provides a wide participation of many social groups; and it imparts greater


legitimacy to the basic institutional framework.

o --There is also a possibility of a contrary situation where the conflicting


interests lead to unworkable constitutional framework

o --However we cannot deny the fact that the constituent Assembly (CA) grows
out of conflict.

o In India, the conflict arose b/t the alien power and the subject people. In
other words, the conflict is b/t the allies of alien power`s and the toiling
masses. These masses are supported by a large body of intellectuals.

o Given the situation, the role of CA is to work out a compromise or


reconciliation b/t conflicting interests. The central legislature was converted
into the CA. The constitution which the CA framed was never put to popular
vote for adoption and the elections. The elections were held after the
promulgation of the constitution (1950) in 1952. The national leaders urged
the people to accept the constitution.

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