Maharashtra State BoardHSC Arts 11th
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Constitutionalism

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Constitutionalism:

Constitutionalism is "a compound of ideas, attitudes, and patterns of behaviour elaborating the principle that the authority of government derives from and is limited by a body of fundamental law". The origins of Constitutionalism can be traced back to Social Contract Theory formulated by the 17th century British thinker, John Locke.

Constitutionalism is the idea, often associated with the political theories of John Locke and the founders of the American republic, that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.

However, there had been many attempts even before Locke to ensure that there were restrictions on the powers of the rulers. They include the Magna Charta in 1215 in England and the Bill of Rights passed by the Parliament in England in 1689.

The Magna Carta (“Great Charter”) is a document guaranteeing English political liberties that was drafted at Runnymede, a meadow by the River Thames, and signed by King John on June 15, 1215, under pressure from his rebellious barons.

Modern Constitutionalism found its concrete expression for the first time in the American Constitution. The first ten amendments to the American Constitution are collectively referred to as the Bill of Rights. These explicitly imposed restrictions on the Government as a whole. For instance, the First Amendment prohibits the making of any law which restricts freedom of speech or of the press. Similarly, the Indian Constitution also prohibits the Government from doing anything that violates the Fundamental Rights of the individuals. These are instances of explicit restrictions on the powers of the Government.

There are six fundamental rights recognised by the Indian constitution:

  1. Right to equality (Articles. 14-18)
  2. Right to Freedom (Articles. 19-22)
  3. Right Against Exploitation (Articles. 23-24)
  4. Right to Freedom of Religion (Articles. 25-28)
  5. Cultural and Educational Rights (Articles. 29-30), and
  6. Right to Constitutional remedies (Articles. 32)

Till recently, the doctrine of Parliamentary Sovereignty prevailed in the United Kingdom. This meant that the United Kingdom’s Parliament had the power to make any law of any kind. However, the scenario where the Parliament made unjust or arbitrary law was avoided by a vigilant public opinion. Today the doctrine of Parliamentary Sovereignty no longer exists in its absolute form. This is because the United Kingdom is now a member of various international organisations and a signatory to numerous international agreements which guarantee rights to individuals. The existence of these rights ensures that there are restrictions on the powers of the Government.

A Constitution which restricts the powers of the Government also can be amended thus opening up the possibility of the removal of these restrictions. Most Constitutions do provide for making changes to themselves. However, the Supreme Court of India in the celebrated Keshavananda Bharati case (1973) laid down the restrictions on the power of the Government to amend the Constitution. It ruled that the Constitution of India possessed a basic structure which could not be altered in any manner, and that other than this there were no restrictions on amending the Constitution. This is known as the Basic Structure Doctrine.

 Keshavananda Bharati case:

On February 1970 Swami Kesavananda Bharati, senior plaintiff and head of the Hindu monastery Edneer Matha in Edneer, Kasaragod District, Kerala, challenged the Kerala government's attempts, under two land reform acts, to impose restrictions on the management of its property. A noted Indian jurist, Nanabhoy Palkhivala, convinced Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference. Even though the hearings consumed five months, the outcome would profoundly affect India's democratic processes. The case had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23,1973, and it consists of 200 pages.

A 13-judge Bench was set up by the Supreme Court, the biggest so far, and the case was heard over 68 working days spread over six months. 11 different judgments were delivered in what is said to be a 7:6 majority. The Supreme Court then ruled that the ‘basic structure’ of the Constitution was inviolable, and could not be amended by Parliament. The 'basic structure' doctrine has since been regarded as a tenet of Indian constitutional law. It is said that even though his holiness Bharati lost the case, the government didn’t win either.

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