Constitutionalism and Democracy: Adapting to Contemporary Challenges

By Jugnu Suhag

Master of Law

Maharshi Dayanand University, Rohtak (Haryana)

Abstract

This paper explores the vitality of Constitutionalism in terms of changing dimensions of Society
and how this principle is playing its role in upholding the Constitutional Principles without
encroaching its power. The society is pacing at a transition phase where the three organs of
Democracy are working hand in hand to uplift the society and meet up their demands. India is
heading towards becoming the developed nation, so my paper is highlighting the importance of
Constitutionalism adhering Rule of Law, Separation of power, judicial activism, democracy,
federalism, fundamental rights of people. The challenges before Constitutionalism and a way
head.

Key words: Constitutionalism, Separation of Power, Democracy, Constitution

Introduction

Constitutionalism is the practice of placing certain restrictions on the general state's authority to
avoid making arbitrary decisions. A nation's constitution serves as its governing document,
outlining the precise laws and conduct required to manage the nation. The Constitution and the
principles of constitutionalism are for and by the people. They strive to preserve people's human
rights for the benefit of the populace. It is a theory that limits the government's ability to
effectively administer the nation. The steadfast belief in the idea of a constitutional government
is known as constitutionalism. For a democratic system to function, this philosophy is essential
and necessary. It serves as the cornerstone of contemporary democracies that are subject to
constitutional governance. The idea is dynamic and ever-changing.

Constitutionalism is an overarching principal, it goes beyond the text of constitution to embody

the culture of adhering to the Rule of Law, Respect for Fundamental Rights and the limiting the
government power. It serves as the moral and ethical Compass that guides the application and
Interpretation of Constitution. Constitution Act as a Skeleton providing framework and support
while constitutionalism act as Spirit which brings the life to the Constitution. Constitution is
more than what it appears on paper. Constitution and Constitutionalism act as bedrock upon
which Societies built and governed.

Constitutionalism as per the Supreme Court of India

Rameshwar Prasad Case1 According to the Honorable Supreme Court, constitutionalism is based
on the rule of law and adheres to absolutism. wherein the constitution itself provides objectivity
in place of subjective satisfaction.

IR Coehlo Case2 According to the Honorable Supreme Court, constitutionalism is a legal

philosophy that calls for restraint on the use of governmental power in order to prevent the
destruction of democratic values.

Constitutionalism in the Indian Context

India's Constitutional framework is rooted in the principles of justice, liberty, equality, and
fraternity, as enshrined in the Preamble. The Constitution of India embodies the principles of
Constitutionalism, as reflected in the following provisions:

 Article 13: It ensures that laws inconsistent with or in derogation of fundamental rights
are void.
 Article 14: The principle of the rule of law is embedded in Article 14, which
guarantees equality before law and equal protection of law to all individuals.
 Article 32: It provides the Right to Constitutional Remedies, allowing individuals to
approach the Supreme Court for enforcement of fundamental rights.
 Article 50: It directs the state to separate the judiciary from the executive, reinforcing the
principle of separation of powers.

1
Rameshwar Prasad And Ors. Vs Union of India and Anr. 2006 SC
2
The State of Tamil Nadu v. IR Coehlo 2007 SC case
 Article 368: It outlines the procedure for amending the Constitution, ensuring its
adaptability while maintaining its core principles.

Significance of Constitutionalism

The significance of constitutionalism is manifold and includes the following aspects:

o Protection of Rights and Liberties: Constitutionalism provides a protective framework for

individual and collective rights. This includes the right to freedom of speech, religion,
and assembly, among others. By setting clear boundaries for the government, it ensures
these rights are not violated.
o Maintaining Order and Stability: Through clear rules and procedures, constitutionalism
contributes to political stability by providing an agreed-upon roadmap for governance.
This helps to prevent conflicts and power struggles that could destabilize the state.
o Promotion of Democracy: Constitutionalism and democracy often go hand-in-hand. By
ensuring that governmental power is not absolute, constitutionalism creates
an environment where democratic practices can thrive.
o Encouraging Accountability: Constitutionalism fosters a culture of accountability. Public
officials are bound by the constitution and are answerable to the people, reducing the
likelihood of corruption and misuse of power.

Fundamental Principles of Constitutionalism

Constitutionalism is characterized by several core principles that define its essence and
operational framework. These elements work together to ensure that government authority is
exercised within a structured and lawful framework while safeguarding individual rights and
promoting accountability.

1. Rule of Law
A constitutional government ought to have a legal system that applies to all citizens of the state.
The constitution explains the law, which is the legally obligatory order of the state and is carried
out by the government. The idea behind the rule of law is that every person of the nation should
be treated equally under the law. It declares that everyone should be treated equally under the
law, regardless of differences in race, gender, class, or geography. A person must submit to the
state's legal system even if they have a prominent position in politics, the economy, or society.
The law ought to apply equally to common people and those in positions of authority. The
fundamental principle of constitutionalism is that no one in the state should be above the law.

2. Separation of Powers
The separation of powers theory states that the legislative, executive, and judicial departments of
government should continue to function independently of one another. In addition to having
checks and balances on one another, the three branches of government should be autonomous.
Montesquieu was the one who initially promoted the notion of separation of powers. Preventing
the government from becoming autocratic is the aim of the principle of separation of powers. A
single institution's concentration of legislative, executive, and judicial authority might make it
authoritarian and disregard constitutional principles.

3. Principle of Checks and Balances

It ensures Governmental power is limited and distributed upholding the Rule of Law and
protecting the individualistic rights. It is so that no single entity becomes dominant thus
promoting Constitutionalism

4. Fundamental Rights to people

Rights are the fundamental opportunity that the state grants its citizens to advance themselves.
The rights that citizens are granted within the state are known as fundamental rights. Individuals
must be granted some fundamental rights, such as the right to life, liberty, property, association,
mobility, and expression. It is necessary for the Constitution to mention these rights. It is the
judiciary's responsibility to defend these rights. People ought to be able to seek legal redress
when their rights are violated. No citizen of the state should be denied their fundamental rights
because of their gender, ethnicity, class, or geography. The constitutions of almost every
democratic nation in the world include provisions pertaining to the rights of their citizens. For
example, the constitutions of the United States, Russia, and India list a number of fundamental
rights. During emergencies, certain states have the authority to temporarily suspend fundamental
rights, which must be reinstated once the emergency has passed. If the state's citizens do not have
rights that should be unaffected by government intervention, constitutionalism is worthless.

5. Liberty to people
One of the prerequisites for constitutionalism is liberty. Individuals in the state ought to be free
to live the lives they choose. Political, economic, social, personal, and religious freedom are
among the most fundamental freedoms that everyone should possess. Political liberty is the
ability to choose one's own government, cast a ballot in elections, and take part in the political
process. The ability to choose one's career or occupation is known as economic liberty. The
freedom to live one's life in society without any restrictions is known as social liberty. The
ability to protect one's personal life from others is known as personal liberty. The freedom to
practice whichever religion one chooses is known as religious liberty. Both liberty and
protections should be guaranteed under the constitution. All residents of the state should be
granted freedom without distinction based on their gender, ethnicity, class, or geography. The
freedom of citizens should not be restricted or interfered with by the government.

6. Political Sovereignty
It is the People as is there in our Preamble “We the People of India….” So, the political
Sovereignty lies in the hands of people. All the Government actions should be having reflection
of the societal needs and there should be some accountability of government towards the people

7. Supremacy of The Constitution

It is the constitution of India in which the legal sovereignty lies. Anything beyond the
constitutional boundaries will be Ultra vires. Even Constitutional Amendment cannot alter the
Fundamental Principles of Constitution and Evolved the principle of Basic Structure 3

8. Independence of Judiciary
It appoints the Indian judiciary to defend the Indian Constitution. A robust and autonomous court
is a prerequisite for modern liberal democracies. The principal duty of upholding and defending
the Constitution of India, the country's fundamental law, has been delegated to the Supreme

3
The 1973 case of Kesavananda Bharati v. State of Kerala
Court of India. The independence and authority of the court are granted by the Indian
Constitution itself. The Supreme Court ruled in the Second Judges case (1993) that the Chief
Justice of India's opinion on Supreme Court judge selections is binding on the president of India,
notwithstanding the fact that the president of India selects judges for the Supreme Court and
High Courts. By denying the legislature or executive any ultimate say in judge nominations, the
Indian Constitution upholds the judiciary's independence. The Indian Parliament attempted to
create a new organization called the National Judicial Appointments Commission with the 99th
Constitutional Amendment Act of 2014 in order to appoint judges to the Supreme Court and
High Court.4 The commission for appointments is operational. In this case, the Supreme Court
upheld the separation of powers principle and the independence of the judiciary. 5 The
independence of the judiciary and the separation of powers between the legislative, executive,
and judicial departments are fundamental to the constitution and cannot be changed, not even by
a constitutional amendment act. Therefore, the Indian Constitution establishes a strong and
independent judiciary to reflect the spirit of constitutionalism in the country.6

9. Federalism
The Indian Constitution also creates decentralization, or the distribution of authority within the
nation. The Indian Constitution has embraced several federal concepts that prohibit the Union
Government from holding all the authority, even if the word "federalism" is not used expressly
anywhere in the document. The Union and State governments share legislative and executive
authority under schedule seven of the Indian Constitution. Normally, this arrangement cannot be
changed since it needs to be corrected by at least half of the states and amended by a special
majority of the states. The national government may give sub regional interests a lower priority if
power is concentrated in its hands, which could be devastating in a diverse nation like India. The
Supreme Court of India ruled in the Bomani case (1994) that the Federal Structure of
Government is the "Basic Structure" of the Indian Constitution and cannot be amended. 7 The
Indian Constitution preserves constitutionalism in the system by embracing federal ideas and
4
https://www.legalserviceindia.com/legal/article-9799-the-amendment-that-wasn-t.html
5
https://primelegal.in/2022/11/29/national-judicial-appointments-commission-njac-case-the-supreme-court-
ofindia/
6
https://constitutionnet.org/vl/item/basic-structure-indian-constitution
7
Dr. Durga Das Basu, Introduction to the Constitution of India, LexisNexis India; P.M. Bakshi, The Constitution of
India.
decentralizing the legislative and executive branches. In the eyes of the government, maintaining
the unity and integrity of a multireligious and multicultural community is a very challenging
undertaking. The nation's territorial integrity may be seriously threatened by regionalism. The
idea that the federal system of governance can meet regional goals is widely acknowledged. The
Indian Constitution itself divides the power under schedule seven, which can only be changed by
a constitutional amendment; hence, state consent is also required under the constitution. Even
though the Indian Constitution incorporated some federal ideas, the structure still leans heavily
toward unitary governance. The unitary features of the Indian constitution that have come under
the most fire are a strong central government, a unified constitution, emergency measures, state
governors in office, and all India services. Political scientists such as K.C. Where claim that the
Indian Constitution is "quasi-federal".8 According to him, unitary state principles supersede
federal ideas in India. India is a "federation with a strong centralizing tendency," according to
Ivor Jennings.9 Does India really adhere to nominal federal principles? Undoubtedly, the
response is no! The chairperson of the Drafting Committee, Dr. Babasaheb Ambedkar, defended
the unitary components of the Indian Constitution in the Constituent Assembly, saying, "A
serious complaint is made on the ground that there is too much centralization and the states have
been reduced to municipalities." This viewpoint is obviously not only inflated, but it is also
based on a misinterpretation of the precise functions that the Constitution serves. It is important
to remember the core idea that underpins the relationship between the states and the centre. The
fundamental tenet of federalism is that the legislative and executive branches of government are
separated between the states and the federal government by the Constitution itself, not by any
laws enacted by the federal government. That's what the Constitution does. The states' executive
and legislative branches are completely independent of the federal government. The states and
the federal government are equal in about this issue. How such a Constitution can be considered
centrist is hard to understand. Therefore, the claim that the states are now under the centre is
incorrect. The Centre is unable to do so on its own. modify the partition's border. And the courts
can't.10 Dr. Babasaheb Ambedkar's remarks are adequate to address the criticism. In the face of
several incidents and threats to India's internal security, it has been noted that a strong central

8
M. Laxmikant, Indian Polity, Chennai: McGraw Hill Education (India) Private Limited
9
ibid
10
The Constitution and the Constituent Assembly; Lok Sabha Secretariat, 1990, P. 176, reproduces Dr. B R
Ambedkar's speech delivered to the Constituent Assembly on November 25, 1949.
government is required to preserve the nation's territorial integrity. A powerful centre is an
anomaly rather than the norm. Under normal circumstances, The federal system of government is
in charge of India's territories. The Indian Constitution has further strengthened this federal
structure by establishing the third level of government, or by giving local self-governments
constitutional standing.

Constitutionalism Challenges

Indian Constitution came into effect on 26 th January 1950 and till date a vast journey has been
traveled by the World’s biggest written Constitution with the changing dimensions of society the
principles too are changing, and some obstacles are coming too proper implementation of
Constitutionalism

1. Institutional Independence Weakening

The independence of the judiciary has been under scrutiny due to cases of judicial overreach and
accusations of government meddling. By a majority vote of 4:1, the 99th Constitutional
Amendment was overturned, indicating that Parliament had clearly intended to undermine the
judiciary's independence by influencing the Basic Structure Doctrine. 11 Decisions pertaining to
constitutional freedom, fundamental rights, and the obligations of natural persons and legal
entities within the jurisdiction for preserving constitutionalism are primarily the duty of the
judicial system. Every legal entity's right to have their case determined only based on laws
passed by the legislature, as well as based on the evidence and facts of the case, without undue
influence or coercion, is protected by the independence of judges, ranging from District Court
judges to Supreme Court justices. A well-functioning judicial system is essential to the
administration of justice in a fair and consistent manner. Independence of Judiciary act as a fuel
for the proper growth of nation.
Court should not encroach on the domain of legislature 12. The theory of Separation of Power has
inspired the parliamentary Democracy.13

11
Supreme Court Fourth Judges Case: Advocates-on-Record Association v. Union of India (2016) 5 SCC 1
12
Ram Bhaj and Ors vs State of HP and Anr 2024 SC
13
Ashwini Kumar vs Union of India 2023 SC
2. Corruption
The operation of constitutionalism is also being impacted by corruption, which is a serious threat
in many nations. Rule of law violations and favouritism are the results of corruption. The public's
trust in the constitution will be damaged as a result of widespread corrupt administrative
activities. The rise of authoritarian regimes may even result from this disregard for the
constitution. India Ranks 93rd out of 180 Countries in the World14.It undermines Constitutional
morality and Public Trust. Equality and fair treatment is denied to Citizens who can’t able to
Bribe which in turn affecting the Constitutional preambles as was seen by the Framers of the
Constitution.

3. Social and Economic Inequalities

The implementation of constitutional values such as social justice and equality is hampered by
disparities in wealth, education, and resource accessibility. Discrimination based on caste and
communal division are against the secularism and fraternity ideals.

Suggestion

1. Strengthen the democracy

Prioritize increasing citizen participation, guaranteeing free and fair elections, and advancing
accountability and transparency in government. A democracy that operates effectively depends
on increasing public confidence in democratic institutions. The Constitution should change to
reflect society's evolving requirements.

2. Understand that the requirements of society change with time.

While maintaining core values, the Constitution should be adaptable enough to handle new
problems including environmental concerns, rights pertaining to technology, and changing social
dynamics.

3. Checks and Balances within the prescribed limits without encroachments

14
Corruption Perception Index 2023
Strengthen the institutions that keep the legislative, executive, and judicial branches of
government in balance. Keep each branch operating within the bounds of the constitution and
avoid overreach.

4. Include digitalization in the Constitution

Understand the effects of the digital age by include provisions that safeguard cybersecurity,
control artificial intelligence, and preserve data privacy. Digital rights ought to be protected,
including internet access and defense against online abuse. The ongoing aspect of Digital Arrest
should be taken seriously, and stringent actions are required for their control

5. Constitution should be Part of Curriculum

To enhance citizens' knowledge of constitutional ideals, rights, and obligations at a young age,
include constitutional studies in school and college curriculum.

6. Promotes Harmony and protection of minorities

To defend minorities' rights and advance inclusivity, strengthen constitutional provisions that
guarantee equal opportunity and protection against marginalization or discrimination.

7. Strengthen enforcement mechanisms

Enhance how constitutional provisions are applied and enforced. To guarantee that constitutional
rights are respected, strong institutions, effective judicial procedures, and law enforcement
authority must be established.

8. Review of policies of Government

To make sure government programs are in line with constitutional ideas, establish frequent
constitutional evaluations. This would offer a methodical approach to finding and fixing any
flaws or discrepancies.

Conclusion
The fundamental component of the Indian Constitution is constitutionalism. Through its federal
structure, independent judiciary, legislative system, judicial review, and enforceable fundamental
rights, the Indian Constitution exemplifies the ideals of constitutionalism. The independence of
people and the lack of arbitrary government are two principles that greatly influence the Indian
Constitution. The Indian Constitution guarantees the rights, fairness, and dignity of its citizens.
As the guardian of the Indian Constitution, the Supreme Court of India upholds the Indian
Constitutionalism viewpoint. What others find amazing is that India, the world's largest
democracy and a multicultural, multireligious, and diverse country, has survived only because of
the idea of constitutionalism, which is the very spirit and essence of the Indian Constitution. In
every working democracy, the idea of constitutionalism has persisted and flourished. But as time
has gone on, governments have discovered how to use the government machinery to further their
own interests rather than that of the populace. The government has tainted the policymaking
process, which has as its main goal the welfare of the general populace, by providing corporate
interests with backdoor access to the decision-making process. People's rights are being
suppressed and disenfranchised by the very document that was enacted to protect them.