Constitution, Constitutionalism And Nature To Amend
The Constitution is the mother of all laws, the terms 'constitution' and
'constitutionalism' are interlinked, but there exist prominent distinctions
between the two. From a layman's perspective, we can perceive it as
constitutionalism encompassing constitution but to venture further into this
spiral, we must acquaint ourselves with the meaning these seemingly simple terms
carry and their different interpretations, and how the amendments are perceived
in this context.
Constitution means a legal document having a special legal sanctity that sets
out the framework and the principal functions of the organs of the government of
a state and declares the principles governing the operation of those organs.
(Wade and Philips - Constitutional Law)
There is no precise definition of constitutional law but generally, it is
understood as the rules which regulate the structure of the principal organs of
the government, the relation between such organs, and their respective principal
functions.
When these principles are written down into a single document or set of legal
documents, those documents may be said to embody a written constitution; if they
are encompassed in a single comprehensive document, it is said to embody a
codified constitution. The Constitution of the United Kingdom is a notable
example of an uncodified constitution; it is instead written in numerous
fundamental Acts of a legislature, court cases, or treaties.
All constitutions are the heirs of the past as well as the testators of the
future. 'The very fact that the constitution of the Indian republic is the
product not of a political revolution but of the research and deliberation of a
body of eminent representatives of the people who sought to improve upon the
existing systems of administration makes a retrospect of constitutional
development indispensable for a proper understanding of the constitution.'
It's not imperative for a nation to have a written constitution as a nation can
continue to exist without it, but not without constitutionalism.
"Constitutionalism is built on the simple proposition that the government is a
set of activities organized by and operated on behalf of the people, but subject
to a series of restraints which attempt to ensure that the power which is needed
for such governance is not abused by those who are called upon to do the
governing."
Constitutionalism is "a complex of ideas, attitudes, and patterns of behavior
elaborating the principle that the authority of government derives from and is
limited by a body of fundamental law".
The concept of constitutionalism, like almost all other social sciences
concepts, has always been subject to or part of an evolutionary process.
Therefore, we cannot point out any specific time or event that led to its
creation or emergence, though a succession of such events may have led to the
shaping and acquisition of an image as an outcome of the totality of those
events or processes. Generally, they are shaped in the context of paradigm
shifts in social and political structures.
The United Kingdom is perhaps the best instance of constitutionalism in a
country that has an uncodified constitution. A variety of developments in
seventeenth-century England, including "the protracted struggle for power
between king and Parliament was accompanied by an efflorescence of political
ideas in which the concept of countervailing powers was clearly defined," led to
a well-developed polity with multiple governmental and private institutions that
counter the power of the state.
India also recognizes the concept of constitutionalism and it becomes
prominent in various landmark cases:
In I.R. Coelho vs. State of Tamil Nadu and Ors., the view taken by the
Supreme Court - The principle of constitutionalism is now a legal principle that
requires control over the exercise of Governmental power to ensure that it does
not destroy the democratic principles upon which it is based. These democratic
principles include the protection of fundamental rights. The principle of
constitutionalism advocates a check and balance model of the separation of
powers, it requires a diffusion of powers, necessitating different independent
centers of decision-making. The protection of fundamental constitutional rights
through the common law is the main feature of common law constitutionalism.
In Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr. It was
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." Constitutionalism is about limits and aspirations.
Further, as observed by Chandrachud, CJ, in Minerva Mills Ltd. - "The
Constitution is a precious heritage and, therefore, you cannot destroy its
identity"
As time advances, there is advancement in many fields like technology, business,
and day to day work of our fellow citizens. Also, the development in different
types of fields like eradication of poverty, better infrastructure, etc. needs
new changes in laws which might make these developments fast and efficient. So
the provision of amendment is there to ensure the required modifications in the
Constitution as per the demand of the time and situations arising in the
country.
An amendment means the process of altering or amending a law or document (such
as a constitution) by parliamentary or constitutional procedure.
In rigid constitutions like the USA, the procedure of amendment is very
complicated and difficult, The process of its amendment broadly involves the
Proposal and Ratification. In the past 200 years, there have only been 27
amendments to the US Constitution so far.
The British Constitution, on the other hand, is unwritten and it doesn't require
any rigid process to initiate amendments. Whereas the Indian constitution is a
mix of both rigid and sufficiently flexible combination as its only a few
provisions of the constitution that requires the consent of half of the state
legislatures. The rest of the provisions can be amended by a special majority of
the parliament.
The 105 constitutional amendments of the Indian constitution are testimonies to
the very idea the constitution was made with and the provisions are such that
they cater to our changing needs. This is how India continues to maintain the
supremacy of the Constitution.
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