Comparative Study of the Principles of Constitutionalism In India and the USA

Introduction 

While ‘Constitution’ is described as the “supreme law of a country”, ‘constitutionalism’ is governance under which the power of the sovereign is limited by the rule of law. Constitutionalism limits the concentration of power in order to protect the rights of the people. In such a system, the power of the government can be limited by the constitution – not only by the provisions and regulations contained in it – but also by other measures and norms.  The idea of the 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. In order to understand these concepts – as well as their similarities and differences – it is important to understand their history and evolution.  

Analysis 

“The idea of constitutionalism is a mechanism of imposing restraint on the arbitrary power of the government, particularly in order to safeguard the liberty of citizens” - C.H. McIlwain.  

McIlwain's definition of sovereignty rests on the principle of consent. Supremacy means actual control of a people and as such commands obedience. But whether a supreme power is sovereign/ independent authority of a State depends upon the presence of, and conformity, to fundamental law. Thus, sovereignty is legal and supreme power or authority.  

‘Law’, that determines who is sovereign/independent authority of a State, is a set of rules not made by the sovereign authority subsisting under that constitution, nor subject to its will. It is, rather, created by the people. This is a fundamental principle of imposing restraint on the abuse of power for the safeguard of the citizens’ fundamental rights. 

Constitutionalism is the mode or rule of governance. According to McIlwain, while ‘despotism’ or absolute power of government is the antithesis of constitutionalism, ‘tyranny’ (cruel and oppressive government or rule) is its subversion by government. In other words, tyranny is deliberate ignorance of the law by the government whereas despotism is not a violation of the law, because there is no law to violate. McIlwain conceived ‘totalitarianism’ or ‘dictatorial type of government’ to be a latter-day form of despotism. It is the rule at will and without law, and as such is the primary modern antagonist of constitutionalism.  

McIlwain used the term ‘autocracy’ to refer to ‘unmixed’ government, i.e. government without popular or political control. Autocracy can be constitutional under exceptional circumstances, if limited and directed by law, tyrannical, if it violates such legal limits and despotic or totalitarian, if without any legal restraint. 

McIlwain wrote that the only means by which a constitutional system can endure is ‘judicial review’, which makes sure that no act of the sovereign shall exceed the legal authority conferred upon it by the people in the integral law or constitution. He insisted that the ‘chief reliance’ against the ‘insidious encroachments of despotism’ is a fearless and impartial interpretation of the law by a free and independent judiciary. He further writes that constitutionalism is a government in which a political method is incorporated which will result in effective rule but also maintains popular control over government officials. In McIlwain's constitutionalism, there are two methods for setting the line of demarcation between public and private spheres and thereby shielding the liberties and rights of people against arbitrary governance. The first being legal limitation/judicial review and the second being political responsibility which conjoins governmental effectiveness and popular control.

Meaning and Scope of Constitution 

The definition of ‘constitution’ is quite complex and has significantly evolved over the past two centuries. According to the Western conception, the constitution is the document that contains the basic and fundamental law of the nation, setting out the organization of government and the principles of society. Yet, although many countries have a written constitution, we continue to see the phenomenon of ‘living constitution’ (one that evolves over time, and adapts to new circumstances, without being formally amended) in many parts of the world. As society changes, so do laws and regulations. Furthermore, in some cases, the power of the government is defined by several different documents and agreements which provide a comprehensive legal framework rather than a single document defining all aspects of the State. Constitution has also been defined as:  

• Basic norm (or law) of the State; 

• System of integration and organization of norms and laws; 

• Organization of the government; and  

• Supreme law of the State  

The constitution is based on the principle of constitutionalism and provides the foundation of government, structuring the political organization and guaranteeing individual and collective rights and freedoms, define the basic structure of government and its organs. 

What is Constitutionalism? 

Constitutionalism is a system of governance in which the power of the government is limited by laws that impose checks and balances, in order to reconcile authority with individual and collective freedoms. It is a style of governance used to achieve the goal of the constitution, i.e. misuse of power by government. 

It is a general understanding that a country may have a constitution, but not necessarily constitutionalism. Constitutionalism envisages checks and balances and puts the power of the legislature and the executive under some restraint, thereby preventing authoritarianism and oppression. Therefore, to preserve the basic freedom of individuals and to maintain dignity, a constitution should be permeated with constitutionalism. 

The idea of constitutionalism (and of the constitution) is strictly linked with the progress and spread of democracies. The core idea of constitutionalism is ‘Rule of Law’ and applicability of law up to the highest level. In monarchic and dictatorial systems, there is generally no constitution or, if it exists, it is not respected. Individual and collective rights are often disregarded in dictatorial regimes, and the government cannot be held accountable as there is no legal document that defines its limits.  

Though constitutionalism has evolved during the last few centuries owing to political changes and progress of democratic ideals, it cannot and should not be confused with the legality of the acts of officials in a governmental setup. It is far more important than having a written constitution. With some exceptions, most countries have written constitutions, but it in no way means that they practice constitutionalism.  

 Principles of Constitutionalism 

1. Separation of Powers 

2. Responsible and Accountable Government            

3. Popular Sovereignty 

4. Rule of Law 

5. Independent Judiciary 

6. Individual Rights 

7. Civilian control over the military 

8. Police Accountability  

Broadly speaking, constitutionalism is divided into two parts; political and legal constitutionalism. In political constitutionalism, the government’s power is regulated through governance mechanism i.e. who will rule, how to rule, which objective to be achieved through the rule etc. Such a governance structure is evolved through the legislature/parliament. Under legal constitutionalism, the judiciary imposes a limit on the power of the government which ensures that the rights of the individual are not be jeopardized. This objective is achieved by enforcement of rights, enshrined in the constitution, by the judiciary.

Constitutionalism in India  

India is a democratic country with a written constitution. Rule of law is the basis for governance of the country and all the administrative structures are expected to follow it in both letter and spirit. It is expected that constitutionalism is a natural consequence of governance in India. The Constitution of India, with the aid of various legislations, has developed a detailed and robust mechanism to put into place administrative mechanisms for the smooth functioning of the machinery of governance. But the experience with the process of governance in India in the last six decades has been a mixed one. On one hand, we have excellent administrative structures put in place to oversee even the minutest of details related to welfare maximization but crucially, on the other, it has only resulted in excessive bureaucratization and eventual alienation of the rulers from the ruled. The gap between the government and the general public is widening. Since independence, those regions which were backwards remained the same, the gap between the rich and poor increased, people at the bottom of the proverbial pyramid remained at the periphery of the developmental process, bureaucracy retained colonial characters and overall development remained much below the expectations of the people. 

The concept of constitutionalism has also been recognised by the Supreme Court of India in Rameshwar Prasad v. Union of India wherein the Court held that “the 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.” 

In Coehlo v. the State of TamilNadu, the Supreme Court held that constitutionalism is a legal principle that requires control over the exercise of governmental power to ensure that the democratic principles on which the government is formed shall not be destroyed.  

Constitutionalism in the USA 

Except for a few countries in the world like England, most other countries have a written constitution. However, it may not be correct or justified to say that all such countries practice constitutionalism. For this reason, constitutionalism assumes even greater significance than a constitution. 

In the USA, William Marbury v. James Madison was the first case of its kind in which the United States Supreme Court introduced the concept of ‘judicial review’ as one of the prominent features of the US Constitution given in Article III. This landmark case defined the limits of the executive and different judicial branches of the American Government. It also laid down a strong foundation of constitutionalism in the country which has been followed by many countries around the world. Since this case, it is the duty of every judge in the USA to declare any enactment void, which violates the US Constitution. It is noteworthy that in Carter v. Carter Coal Co. (1936), it was held that the courts cannot decline to exercise this power. 

The USA inherited the concept of rule of law from medieval England, sometimes expressed as “a government of laws, not of men.” This doctrine that no man is above the law, applied not only to Kings but also to legislative bodies and judges. Federalism, separation of powers, and rule of law are at the heart of the American Constitution. But there are other fundamental principles of the system as well, all of which contribute significantly toward the achievement of liberty, order, and justice.  

Like India, the United States also has three separate organs of State which derive their respective powers and duties from and are enshrined in the first three Articles of the US Constitution. According to the US Constitution, Congress (commonly known as the House of Representatives) and the Senate have the sole lawmaking power in the USA. The President of the USA has the liberty to exercise his veto power on the bills passed by Congress. However, Congress can also override the veto power exercised by the President. After a bill becomes law, courts are empowered to check the constitutionality of such law and if they find that the law is contrary to the US Constitution, they can declare the law null and void. Therefore, courts in the USA are endowed with the power of judicial review. Thus, the system of checks and balances is embodied in the constitution. 

Conclusion 

The above discussions lend credence to the theory of constitutionalism of C.H. McElwain for various reasons, including but not limited to the statement written by McIlwain himself that the only means by which a constitutional system can endure is judicial review. It ensures that no act of the sovereign shall exceed the legal authority conferred upon it by the people. Therefore, the cardinal principles of constitutionalism are judicial review, rule of law and limitation on powers of the government to safeguard the fundamental rights of the people.  

Rule of law, being one of the key elements of constitutionalism guarantees that nobody is above the law and everyone is subjected to the law of land. Only an independent judiciary ensures the supremacy of law. Significantly, the Apex Courts of both India and the USA have time and again upheld the Rule of law through various judicial precedents. 

Though it’s a long-settled position that a constitution can exist without constitutionalism but not vice versa, however, somehow this is not a conclusive statement. Constitution and constitutionalism are both integral parts of each other in a democratic country like India. Neither can survive in the absence of the other. The dilemma in every democracy is that the constitution cannot interpret or function itself and has to be interpreted by the one who holds power i.e. the sovereign, but not in an arbitrary manner. If constitutionalism ceases to exist then the object of the constitution will remain unfulfilled. Hence, in a democratic country, both constitution and constitutionalism are essential to achieve this objective.