|Constitutional Theory in Different Countries
|Constitutional Theory in the Indian Context
|Background of Formation of the Constitution
|Salient features of the Indian constitution
This article aims to present an overview of Constitutional Theory, its types, and its evolution over the period of time. Further on it explains in detail the constitutional principles of some of the world’s strongest constitutions, particularly the Indian and US constitutions.
Constitutional Theory is an aspect of constitutional law that focuses on the underpinnings of constitutional government. A constitutional theory tries to draw upon bases of agreement that exist within a legal culture and to extend those agreed-upon principles to solve issues and problems in society. Its main aim is an organization of all points of agreement together in a formal manner in cases where there is no agreement. This theory can be both subjective as well as prescriptive. On one hand, the constitutional theory is prescriptive as it purports to tell what to do but at the same time, it is also descriptive as it cannot call for a wholesome departure from existing practices.
Constitutional theory can be best understood if seen as an exercise of justification. More or less, it is an effort to justify a set of prescriptions about how certain controversial constitutions should be decided. The justification is then addressed to people within a particular legal culture There are broadly two aspects of constitutional law:
- The first aspect which is more of a formal theory covers
- The overall structure of the government
- Relations amongst branches of government
- Relations between various levels of government
- The second aspect relates to the theories of judicial review, which provides justifications for the occasions on which the courts, ruling on constitutional issues, will and will not displace the judgments of elected officials.
A constitution is a set of fundamental principles or established precedents, all of which altogether constitute the legal basis of an organization, and polity and determines how that entity is to be governed. When all the principles (to be followed) are written down in a single document or multiple legal documents and are written in a single, codified, comprehensive document it is said to constitute a constitution.
Constitutionalism is a legal political philosophy that recognizes the need for a government but at the same time also emphasizes restraining its power. This evolutionary philosophy is essential for a democratic setup. Like constitutional theory, there is no uniform definition of constitutionalism but in modern times it emphasizes restraining the powers of government to an extent that it doesn’t hinder the self-development of the society and economy.
Constitutions concern different levels of organizations, from sovereign countries to companies and even unincorporated associations. Moreover, even a treaty that establishes an international organization can be termed to be a constitution since it describes how that organization was constituted. Constitutions especially codified one act as limiters of state power, by establishing lines that a state’s rulers cannot cross such as fundamental rights.
The constitutional theory differs from one country’s constitution to another’s.
Constitutional Theory in Different Countries
CONSTITUTIONAL THEORY AS ESTABLISHED IN THE UNITED STATES OF AMERICA is more of an academic discipline that focuses on the meaning of the US constitution, which draws attention to all aspects ranging from ethical, political, linguistic to sociological to historical. US’s constitutional theory emphasizes a lot of Judicial Review.
Judicial Review is a process wherein the judiciary reviews the legislative, executive, and administrative actions. It is one of the checks and balances in the separation of Power wherein the judiciary has the power to supervise the legislative and executive branches when the latter exceeds their authority. The types and general principles vary according to the jurisdiction and the country.
This idea of Separation of Power; initially introduced by Montesquieu, is based on the idea that no branch of government should be able to exert power over any other branch without due process of law, each branch should keep a check on the other to create a “regulative” balance amongst all.
When carrying out judicial review a court may ensure that the principle of ‘Beyond the Powers’ (ULTRA VIRES) is followed i.e. the public body’s actions must not exceed the powers given to them by legislation.
The great influence of judicial review in constitutional theory was established in Marbury v. Maddison. Broad concepts explained by the Constitutional Theory:
- It seeks to understand the relationship between
- Branches of government
- Individual rights and state power
- Federal government and state
- It seeks to understand how the constitution’s meaning shifts with
- changes in cultural norms
- changes in Political structure
Some of the US’s constitutional theorists are:
- Bruce Ackerman
- Jack Balkin
- Ronaldo Dworkin
- Robert Post
- Class Sunstein
GERMANY’S CONSTITUTIONAL THEORY was established by Immanuel Kant and is based on the supremacy of a country’s written constitution This idea is the foundation for the constitutional theory of the 21st century.
Similarly, based primarily upon the German legal tradition, the Russian legal system was borne out. Russian legal state concept adopts the written constitution as a supreme law of the country, it consists of 6 democratic federative legal states with a republican form of governance.
Constitutional Theory in the Indian Context
The Constitution of India is the supreme law of the land in India. The constitution lays down the framework that demarcates fundamental political code, structure, powers, and duties and lays down fundamental rights, directive principles, and duties of citizens. The democratic values in Indian society are deeply rooted in REPUBLICS since the era of the Janpadas, which can be traced back to 600 BC. The constitution very well upholds the principle of equality in all fields like ethnicity, gender, religion and creed. The success of the constitution in such a vast and diverse country like India can be traced to the fact that India has successfully accommodated the aspirations of people since its creation. Despite many internal challenges in illiteracy, inequality and diversity of cultures, traditions, and religions in contemporary India.
Background of Formation of the Constitution
The Constitution of India was framed by the Constituent Assembly, elected by members of the various Provincial Assemblies. Dr B. R. Ambedkar was the chairman of the drafting committee formed by the Assembly. Our Indian Constitution was finally adopted by the Constituent Assembly on 26 November 1949 and became effective on 26 January 1950. At the time of adoption, the Indian Constitution consisted of 395 articles in 22 parts and 8 schedules. Later, additional parts and articles have been included in the Constitution through various amendments. Presently, there are 25 parts, 448 articles and 12 schedules in our Constitution.
The first ever report prepared, also called the Nehru Report was formed in 1928 when the All Parties Meet convened a committee in Lucknow.
The Indian Constitution is drawn from a large number of sources, depending on India’s needs and conditions. It draws inspiration from the already proposed constitutional theories in other parts of the world.
The constitution declares India to be a Sovereign, Secular, Socialist, Democratic, and Republic and assures to all its citizens Justice, Liberty, Fraternity, and Equality as prescribed in the Preamble of the Constitution.
The Indian constitution prescribes the functioning of each organ and even the biggest to the smallest unit of administration in India. The three pillars of the Indian legal–political system are the Legislative, Executive, and Judiciary. Constitutions are broadly classified by political scientists as being unitary or federal. In a unitary constitution, the powers of the government are centralized in one government which is the central government, the provinces are subordinate to the centre. However, on the other hand, in the case of a federal constitution, there exists a division of powers between the Federal and State governments. Indian constitution is however termed as a mix combo of both types of constitution i.e., a Quasi Federal constitution. Dr BR Ambedkar termed the Indian constitution as a
predominantly federal constitution with a slight mix of unitary features.
Salient features of the Indian constitution
- Lengthiest Constitution
The constitution of India is a written constitution that happens to be the lengthiest written constitution in the world. It is an extensive, elaborate, and detailed document.
- Drawn from Various Sources
It has taken the majority of its provisions from the constitution of several other countries as well as from the Government of India act, of 1935. Ex: structural part from GOI, 1935, independence of the judiciary from USA, Fundamental Rights from USA, etc.
- The Preamble of the Constitution
The Preamble includes the objectives, ideals, and basic principles of the Constitution. The Preamble is the nature of the Indian state and its purpose is committed to safeguarding the people. The Preamble of the Indian constitution also called a short introduction to the constitution sets out the main objectives which the legislation is intended to achieve. It is often termed as expressing the phrase “what we thought or dreamt for India for so long”.
In the Re Berubari case, the Supreme court held that the Preamble to the constitution is a key to opening the mind of the makers and shows the basic objective for which they made the different provisions in the constitution. However, at the same time, it doesn’t mean that it can override the express provisions of the constitution.
In Kesavananda Bharati v State of Kerala, the Supreme Court held that Preamble is a part of the constitution. Sikri, CJ had observed, “It seems to me that the Preamble of our Indian Constitution is of extreme importance and the constitution should be read and interpreted in the light of the grand and noble vision expressed in the preamble.”
- Fundamental Rights and Duties
The Constitution of India allows and ensures Fundamental Rights to its citizens.
- Directive Principles of State Policy
A unique part of the Constitution is that it consists of a chapter in the Directive Principles of State Policy.
- Federal Structure of Government
The Indian Constitution has conceived a federal structure for India in view of the geographical vastness and the diversity of regions, languages, castes, religions, etc.
- Concept of Single Citizenship
The concept of single citizenship has been envisaged in the constitution of India where all citizens enjoy common uniform citizenship.
- Integrated Judiciary
The Constitution specifies a single integrated judicial system for the Union and the states.
- Basic Structure Doctrine
The basic structure doctrine was firmly established by the Kesavananda Bharti v. State of Kerala which means that the basic structure of the constitution cannot be either changed or destroyed through amendments made by the Indian Parliament. It is probably one of the most important, landmark cases post-independence. While deciding on the issue, it was contended that in case unfitted powers were vested in the hands of the parliament, it would lead to misuse of power by the government as per their own whims and fancies. In short, this limitless power can erode the fundamental governing, and guiding principles of the constitution.
It was held in the case of Indira Gandhi v. Raj Narayan and in the case of Minerva Mills v. Union of India that the where comes the question that whether a particular feature of the constitution is to be covered under the basic feature or not, is upon the discretion of the relevant court, before which the case has been brought up to.
- Judicial Review
It was held in the case of State of Madras v. V.G. Row, Chief Justice Patanjali held that judicial review is an important component closely attached to the legislature.
- Living Document
Last but not the least, In the case of Nagaraj v Union of India it was held that the Constitution of India is a living document which is a set of leg rules for the present society but at the same time it envisages principles for the futuristic society keeping in mind the adaptation it shall have to take during times of various crisis of human affairs.
There are many interpretations and analyses of constitutional theory. It differs from country to country, organization to organization as the purpose of a constitution, a legal document that serves society also varies accordingly. The Indian constitution, the world‘s lengthiest and most complex constitution is a great blend of features adopted from the constitutions of countries from all across the globe. India, which adopted the path of democracy much later than other western countries, took inspiration from all these borrowed features to create a constitution which can meet the demands of the heavily diverse India. Some of the most salient features of the Indian constitution which make it stand apart from the other constitutions include being the lengthiest constitution, the preamble or the unique short brief to the constitution, and the concept of basic structure doctrine which has been laid down and upheld in several landmark cases. The Indian constitution most importantly is neither too rigid nor too flexible, it allows amendments to the existing structure through specified procedures, to cope up with the changes of time and society, hence making the Indian constitution a living document. Despite, all flaws pointed out by the critics, the Indian constitution has stood all tests of time and won in all aspects of the Indian Democracy.
- Marbury v. Madison, 5 U.S. 137 (more)1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352
- Re: The Berubari Union, AIR 1960 SC 845
- Kesavnanda Bharati v State of Kerala, AIR 1973 SC 1461
- Mineva Mills v. Union of India, AIR 1980 SC 1789
- State of Madras v. V.G. Row, 1952 SCR: AIR 1952 SC 196
- Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212
- Constitution of India, V.N Shukla
- WILLIAM & MARY BILL OF RIGHTS JOURNAL: constitutional theory in a nutshell by THOMAS E. BAKER
- What is a constitutional theory? – DAVID A. STRAUSS; CALIFORNIA LAW REVIEW (VOL. 97:581)
This article is written by Jasmine Sethi, a 1st-year law student at Dr B.R. Ambedkar National Law University