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Concept of constitutionalism

 Concept of constitutionalism


Who Started Constitutionalism?

John Locke - The English Bill of Rights is a foundational constitutional document that helped inspire the American Bill of Rights. Political theorist John Locke played a huge role in cementing the philosophy of constitutionalism. 

  • Constitution

is a written law which describes the structure of Government, the rules according to which the Govt. must work and the boundaries within which the Govt. must work.

  • 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.

Constitution

  • constitution is the document that contains the basic and fundamental law of the nation, setting out the organization of the government and the principles of the society.

  • Basic norm (or law) of the state;

  • System of integration and organization of norms and laws; and

  • Organization of the government. 


What is Constitutionalism?

  • Constitutionalism is a system of governance in which the 

  • power of the government is limited by laws, 

  • checks and balances, 

  • in order to reconcile authority with individual and collective freedoms. 

  • The principle of constitutionalism must be understood in opposition to non constitutionalism – a system in which the government uses its powers in an arbitrary fashion, without respecting the citizens rights. 

  • This is a concept accepted not just in India, in other matured democracies as well.


Veena Seth v. State of Bihar (AIR 1983 SC 339)

  • extended the reach of the Rule of Law to the poor and the downtrodden, the ignorant and the illiterate, who constitute the bulk of humanity in India, when it ruled 

  • that the Rule of Law does not exist merely for those who have the means to fight for their rights and very often do so for the perpetuation of the status quo, which protects and preserves their dominance and permits them to exploit a large section of the community. 

  • The opportunity for this ruling was provided by a letter written by the Free Legal Aid Committee, Hazaribagh, Bihar drawing its attention to unjustified and illegal detention of certain prisoners in jail for almost two or three decades

  • Recent aggressive judicial activism can only be seen as a part of the efforts of the Constitutional Courts in India to establish rule-of-law society, which implies that no matter how high a person, may be the law is always above him. Court is also trying to identify the concept of rule of law with human rights of the people. 

  • The Court is developing techniques by which it can force the government not only to submit to the law but also to create conditions where people can develop capacities to exercise their rights properly and meaningfully. 

  • The public administration is responsible for effective implementation of rule of law and constitutional commands, which effectuate fairly the objective standards laid down by law. Every public servant is a trustee of the society and is accountable for due effectuation of constitutional goals. This makes the concept of rule of law highly relevant to our context.
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