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The concept of Constitutionalism is central to the functioning of a healthy democracy. It is a philosophical concept that is essential for a democracy and republic. The ideal ensures that liberty is bestowed upon the individual and that the state does not violate its bounds and trespass into the freedom granted to the citizens by the Constitution. It restricts the government to encroach upon the rights and freedoms of the citizen. This ensures that the democratic spirit of the country is upheld and the state does not take the course of a dictatorial or authoritative type of structure.

The constitution is a set of rules that are written that are to be followed by all citizens of the country alike. The constitution provides regulations to determine how the government must be constituted, who holds power, what rights and duties and up to what extent shall be provided to citizens, and measures to keep the public order and morality in check, and so on. The constitution expresses the aspirations of citizens to create a harmonious society.

The spirit of Constitutionalism is evolutionary in nature. It may be translated to 'limited government.' While Constitutionalism recognizes the need for a structure's governance, it actively seeks to restrain or limit the exercise of such power rested with the office.

As per Michael Rosenfeld, there is "no accepted definition of constitutionalism, but, broadly, modern constitutionalism requires imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights."[1]

Features Of Constitutionalism

  • Supremacy of law and the constitution
  • Separation of power
  • Independent form of Judiciary
  • Limited Representative Government
  • Armed services governed by law

Negative And Positive Form Of Constitutionalism

Negative Constitutionalism:

The traditional notion of constitutionalism is that of a negative ideal. A negative understanding of the concept emerges from the idea of limiting and restricting the powers of the country. From the angle of a negative sphere, the government exercises its power incessantly and is a danger whose authority needs to be checked and limited. Here, the purpose of law is to keep the limits of the executive and legislature in check and balance. The acts of the government that are arbitrary in nature are to be measured and analyzed, which is well within the bounds of the judiciary.

Sometimes, the state is unable to provide schemes, welfare, and developmental programs to its citizens due to negative constitutionalism that prevents state action. It is thus not desirable in a state like India, wherein the state acts as a welfare state aspiring to promote social, political, and economic justice.

Positive Constitutionalism:

Unlike negative constitutionalism, which bases its understanding entirely upon the limits on the exercise of state control, the aspect of positive constitutionalism puts forth the idea of the state being seen as a 'welfare state.' It focuses on the requirement of the state being effective, inclusive of competent state machinery and institutions that ensure the wellness of the people.

As to politicians, if a constitution does not ensure respect for the prevalence plurality in the state, then it fails to fulfil the essential elements of constitutionalism. Judicial interpretations, reviews, amendments, and legislative action are some methods to inculcate the values of diversity in the nation.

Is There A Need For Constitutionalism

The healthy functioning of a constitution rests upon the spirit of democracy and reasonable exercise of legislative control, that is to say, a spirit of mutual understanding, reasonable restrictions, self-restraint, and respectful accommodation of different stances and ideas. There can exist no healthy democracy unless the holders of power are ready to keep in mind the upper limits of state authority.[2]

In New India Assurance Company Ltd. V Nusli Neville Wadia, the judiciary held that for proper and systematic provision interpretation of the constitution, the elements of constitutionalism, as well as principles of natural justice, have to be involved therein.[3]

A mere, written constitution does not ensure adherence to the ideal of constitutionalism. Fundamentally, the citizens and political traditions are parallel to each other in spirit. Unless democratic principles are relevant, nationalism cannot exist. Assaults to fundamental rights such as freedom of speech and expression, privacy, etc, undermine the very survival of constitutionalism.

For the philosophy of constitutionalism to hold, a constitution needs to have elements that either restrain the government from following arbitrary pathways or compel it to act as a welfare power organ, securing and ensuring a healthy, dignified life for all its citizens.

Constitutionalism In India

India draws its identity from the existence and result of the written, extensive constitution of India. The constitution highlights the structure and character of the state and also the immunities provided to its people. Thus, it is understood that the Constitution provides for the degree or extent of the powers of the government. One such article that ensures that governmental power is not overreached is Article 21. Article 21 of the constitution of India provides for freedom of life and liberty that cannot be curtailed except by reasonable procedure established by the law of the state. This is a limitation and keeps the arbitrary powers of the state's executive and legislature in check.

Fundamental Rights are the strongest bulwark against the unjust or malafide exercising of powers of the state; these rights act as a restrictive element that dictates the state as to what actions are against the fundamentals of the constitution.

One of the most significant features attributed to the Indian Constitution that, therefore, provides for a limited government is that of its written, codified nature. This is to say that the laws coded are supreme and leave little to no scope for extra judicial overreach when it comes to the rules of the land. This places control on the government that only allows the state to go beyond the mandates of the Constitution, which is the core of the concept of Constitutionalism. As in part IV of the Constitution, the state cannot go beyond or stretch the limits of the DPSPs that act as an element part of the Constitution.

The structure of the Constitution of India ensures that the powers of the state organs are limited and restricted so as not to exceed the bounds of expression of power. This is so that the discretion and liberty given to the executive and the legislature do not turn towards practices of arbitrariness and malicious exercise. The federal structure of the Government, the procedure to amend, Fundamental Rights, Rule of law, and an independent judiciary, all in spirit, act as forces to limit the State in a reasonable and just way.

  • New India Assurance Company Ltd. v. Nusli Neville Wadia (2007)

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