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Preprint · May 2018

DOI: 10.13140/RG.2.2.22226.45760



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Sandeep Kulshrestha Amity University, Madhya Pradesh,India Sandeep Kulshrestha Amity University, Madhya Pradesh,India


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How far Constitution of India is from the Constitutionalism ?

Sandeep Kulshrestha Asstt. Prof. (Law), Amity University M.P. Gwalior, Madhya Pradesh, India. Email -

Abstract: Constitutionalism is a modern concept which stands for the supremacy law and not of
Abstract: Constitutionalism is a modern concept which stands for the supremacy law and not of
individuals. Constitutionalism in this way desires a political order in which the powers of the
government are limited. The rise constitutional state is essentially an historical process and is the
result of long drawn struggle against monarchy, absolutism and feudalism. Such struggle mostly
took place in the western countries and subsequently spread to different countries of the world.
Key Words: Constitutionalism, Judicial Activism, Constitution.


A constitution consists of a set of norms (rules, principles or values) creating, structuring, and possibly

defining the limits of, government power or authority. Understood in this way, all states have constitutions and all states are constitutional states. Anything recognizable as a state must have some means of constituting and specifying the limits (or lack thereof) placed upon the three basic forms of government power: legislative power (making new laws), executive power (implementing laws) and judicial power (adjudicating disputes under laws). Independence of Judiciary is very important in a democratic country. Judiciary should not be answerable and accountable to parliament because India follows the theory of separation of powers. In India, if any law comes in the way to maintain constitutionalism, it is declared invalid and unconstitutional.


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. According to Article 16 of the French Declaration of Rights of Men and Citizen of 1789,“Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no constitution.” What is the origin of Constitutionalism? Constitutionalism is a modern concept which stands for the supremacy law and not of individuals. Constitutionalism in this way desires a political order in which the powers of the government are limited. The rise constitutional state is essentially an historical process and is the result of long drawn struggle against monarchy, absolutism and feudalism. Such struggle mostly took place in the western countries and subsequently spread to different countries of the world. Some form of constitutionalism did exist in the ancient Greek and Roman city states. Greek philosophers like Plato and Aristotle stud constitutionalism from purely a normative and moral stand point. With establishment of great Roman empires, constitutionalism got further impetus. Despite irresponsible autocracy which prevailed in Roman empires, Roman constitutionalism made important contributions to the development of this concept. A great change took place after the disintegration of the Roman Empire in the 6th century A.D. The middle ages which followed it, was mostly an era of feudalism. The dominance of Christianity or the churches over the political system was the hallmark of this period. The ideas of political thinkers like St. Augustine and St. Thomas made secular authority subservient to the authority of the church. The authority of the Pope over all secular and religious heads of the Christian world was established.

It was only after nearly 800 years, the national monarchs raised their heads to overthrow the hold of

Papacy. The Renaissance and Reformation in the European countries marked the reemergence of

humanistic and scientific outlook. It destroyed the medieval concept of universalism and scholasticism and helped in the creation of 'modern secular and sovereign national states. However, it is pertinent to note that this period witnessed the emergence of absolute monarchy which retarded the pace of constitution state. As a result, papacy declined, but in its place were established absolute monarchical rules in England, France, Italy, Spain and Prussia. In spite of the fact that the Renaissance state was not truly constitutional and democratic, the actual growth of modern constitutional state emerged here; Britain occupied the most significant place in the development of constitutionalism.The civil war of 1640-48 followed by the glorious revolution of 1688 confirmed the sovereignty of the people. With the enactment of various reform acts subsequently, what Dicey calls the” „rule of law‟ became the cardinal principle of British political system. France was also significantly affected by the wave of constitutionalism. Ignited by the 'social contract' of Rousseau, the French revolution paved the way for the establishment of constitutional government. Though France witnessed rise and fall of several unstable monarchies subsequently, it finally embarked upon the path of constitutional government. The United States also made significant contribution in this regard. The 'Declaration of Independence' of 1776 categorically asserted the democratic right of the people and supremacy of the constitution.The post first world war period, contrary to the expectation, witnessed the emergence of authoritarian reactions against constitutionalism in the form of communism in Russia, Fascism in Italy and Nazism in Germany. However, one remarkable aspect of this period was the establishment of the League of Nations which aimed at constitutional resolution of conflicts among nations.The Second World War witnessed the destruction of dictatorship in Italy, Germany and Japan. The only model that survived as an alternative to western constitutionalism was communist model of the erstwhile Soviet Union. The post Second World War period also was marked by the progress of democratization and emergence of a numbers of third world countries. This period was the period of bipolar world.As a result these newly independent countries either opted for the western or the Soviet model those which opted for the western model also had two options. Either to accept British or the American model. Whatever it may be, the fact remains that constitutionalism made a vigorous march during this period and today we find most of the countries have adopted democracy and constitutionalism as the accepted principle. With the collapse of communist empire and virtual end of colonialism and racism, constitutionalism has been the go of the world.


The political doctrine of the Separation of Powers can be traced back to Aristotle, who states: „There are three elements in each constitution, first, the deliberative, which discusses everything of common importance; second the officials; and third, the judicial element.‟ This highlights the three elementary functions that are required for the organisation of any state. Nowadays, they are defined as the legislature, the executive and the judiciary, and are carried out by Government. Separation of powers is a principle set out by Montesquieu in the 17th century after observing the British System of the time. The doctrine of the separation of powers sets out that there are three distinct entities at the centre of the decision and law making process. Montesquieu believed that the best safeguard against tyranny was the separation of the Executive, Legislature and Judiciary (Bernett :

2001) 1 . The Executive is the administrative branch of government. It makes laws by way of delegated legislation and drafts bills. The Legislature, the law-making branch of government, is the House of Commons and the House of Lords. The Judiciary, the law-enforcing branch of government, enforces the law through their interpretation of legislation.” “Separation of power can mean three things;

that the same persons should not form more than one of the three entities, and

that the entities should be kept entirely separate and should not interfere with one another‟s role, and

that these entities should not be able to wield the power of other entities.( Keynes :2003) 2 The separation of power plays an important role of keeping the three branches which are legislative, executive, and judicial in the government systems equal to one another and that neither branches becomes too powerful. Each branch has its very own power and duties to serve to the people and government. All three branches play a significant role in checks and balances and separation of powers, in our government and rely on each other to make sure that all of the power is equally distributed. The question which now arises is whether or not there should be a strict separation of each of the above functions. Locke stated that it may be too great a temptation to human frailty for the same persons who have the power of making laws, to have also their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage. Similarly, Montesquieu believed that: When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty if the power of judging is not separate from the legislative power and from the executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor.It is often understood that in India the debate about the separation of powers dates as long back as the Constitution itself. It was extensively debated in the Constituent Assembly. It was not given constitutional status in our Constitution finally but it does clearly seem that the constitution of India has been made keeping the separation of powers doctrine in mind, but nowhere is this explicitly stated or embraced by the constitution itself. Since ours is a parliamentary system of governance, though an effort has been made by the framers of the constitution to keep the organs of the government separated from each other, but a lot of overlapping and combination of powers has been given to each organ. The legislative and executive wings are closely connected with each other due to this, the executive is responsible to the legislature for its actions and derives its powers from the legislature. The head of the executive is the president, but a closer look shows that he is only a nominal head and the real power rests with the Prime Minister and his Cabinet of ministers as in Article 74(1). In certain situations the President has the capacity to exercise judicial and legislative functions. For example, while issuing ordinances Art? The judiciary too performs administrative and legislative functions. The parliament too may perform judicial functions, for example if a president is to be impeached both houses of Parliament are to take an active participatory role. Thus all three organs act as a check and balance to each other and work in coordination and cooperation to make our parliamentary system of governance work. India being an extremely large and diverse country needs a system like this where all organs are responsible to each other as well as coordinated to each other, otherwise making governance possible becomes a very rigid and difficult task.It is important to note that the separation of powers is still an important guiding principle of the constitution. Most noteworthy is our judicial system which is completely independent from the executive and the legislature. The High Courts and Supreme Courts have the power of judicial review which empowers them to declare any law passed by the parliament unconstitutional if it so decides. As in regard to the judges, they are extremely well protected by the Constitution, their conduct is not open to discussion in the Parliament and their appointment can only be made by the President in consultation with the Chief Justice of India and the judges of the Supreme Court. It is clear that the Separation of Powers doctrine has not been implemented in its strictest format in our country nor been given Constitutional status but a diluted and modern approach is followed to aid and guide our parliamentary system of governance. The Kesavananda Bharati case 3 is most important in this context. The main question was whether the parliament had unrestricted amending powers due to article 368 over the constitution and how much could actually be amended. To this the judgement given by the Supreme Court held that the amending power of the parliament was subject to the basic structure of the Constitution, and any amendments

which tampered with the basic structure would be unconstitutional. In this judgement, the separation of powers doctrine was included in the basic structure of the constitution and thus any amendments which gave control of one organ over another would be unconstitutional, leaving the Executive, the Legislature and the Judiciary completely independent. It must be kept in mind though that in India the separation of powers doctrine is not followed extremely rigidly.In Indira Nehru Gandhi v. Raj Narain 4 , the Supreme court asserted the Kesavananda ruling and upheld the basic structure as well as the separation of powers doctrine, made it a landmark judgment. The dispute in this case was regarding the Prime Ministers elections, where the constituent body had declared that the elections weren‟t void, thus acting in a judicial capacity. This made the actions of the constituent body ultra-vires. It was thus held that a parliament cannot under any constitutional amending power or the like take on the role of the judiciary. Thus the position of separation of powers was upheld and asserted in this case.In Delhi Development Authority v M/s UEE Electricals Engg. Pvt. Ltd 5 the Supreme Court ruling has sought to clarify the meaning and objective of judicial review as a protection and not an instrument for undue interference in executive functions. The Supreme Court made the observation that,”“One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is illegality, the second irrationality and the third procedural impropriety.The Indian Constitution is an extremely carefully planned document designed to uphold the integrity and liberty of every citizen, has not in its entirety embraced the doctrine of separation of powers but has indeed drawn a lot from the concept and kept it as a guiding principle. But the doctrine of Separation of Powers has been included in our basic structure doctrine as has been ruled and upheld by the Supreme Court in a number of cases. Thus it holds a position of utmost importance, albeit has been modified to suit the needs of a modern all pervasive state.


Judicial Review is the reassessment of the legality of actions or decisions made by those in position of public authority or bodies. The action or decision in question is brought before a Judge in court proceedings where the lawfulness of the decision is tested. Judicial Review is a great weapon in the hands of judges, it gives power to the courts to review statutes and governmental actions to determine whether they conform to rules and principles laid down in constitutions. Judicial Review is based on the idea that a constitution which dictates the nature, functions, and limits of a government is the supreme

law. Consequently, any actions by a government that violate the principles of its constitution are invalid. The main purpose of Judicial Review is to ensure that public authorities do not act in excess of their powers and this explanation is supported in the following words of Sedley J“the purpose of Judicial Review is to ensure that government is conducted within the Law". It could be said that the subject matter of every Judicial Review is a decision made by a person in power, or, the failure of that person to make a decision. Nonetheless, it is important to note that in Judicial Review, it is always the legality of the decision that is explored by the courts. The decision itself does not necessarily have to be right or wrong. The court has to investigate as to whether there was lawful and fair action taken by the public

Judicial Review is not a process of appeal and must only be used when

all other avenues of resolution have failed. This must be recognised by any individual who seeks to apply for such review. The main variance between Judicial Review and appeal is that judicial review deals with the legality of the decision under the examination of the courts whereas the appeals process delves into the value of the decision under scrutiny.In its capacity as the guardian of the Constitution the Supreme Court of India possesses implied power to declare any Act of the Central or State Legislature or any decree of the Executive as ultra vires, if it does not conform to the provisions of the Constitution. The power of the Judiciary to review the Act of the Legislature or the Executive in order to determine its constitutional propriety is known as the Doctrine of Judicial Review‟.

body when reaching its decision.

America is the classic home of judicial review. It was an extra constitutional growth in America. In the famous case of Marbury vs. Madison (1803) Chief Justice John Marshall of the United States emphatically pronounced the power of the Court to declare the act of the legislature as ultra vires.Marshall claimed this power of the Court from famous clause of „Due Process of Law‟ of the American Constitution. One of the Bills Of Rights in the American Constitution is that“No person shall be deprived of his life, liberty and property without due process of law”. American Jurists claim that Law in this Clause is akin to Natural Law. According to Daniel Webster the meaning of „Due Process of Law‟ is that „Every citizen shall hold his life, liberty, property and immunities for the protection of general laws which govern society‟.” „Due‟ in this clause has been taken to mean „What is just and proper‟ and „Law‟ as „Natural Law‟. Thus the Judicial Review in the American Constitution has two aspects, namely, procedural and Substantive. The Supreme Court can challenge an Act if either its procedure is defective or the substance contained in it is against the canons of the natural law or natural justice. There is no judicial review in England. England has an unwritten Constitution. There is absolute supremacy of the Parliament. The Chief Legislators and Chief Executives are combined and the Cabinet headed by the Prime Minister brings complete co-ordination between the legislation and administration. Hence judicial review is not necessary.”” The power of judicial review is explicit in the Constitution of India. Further, the scope of judicial review in India is not as wide as that of the United States of America. The scope of judicial review is comparatively limited in India because of the fact that the Constitution of India is the longest written Constitution in the world. All provisions including the distribution of powers between the Union and the States have been elaborately enumerated.The enumeration of Fundamental Rights along with its limitations in detail has also restricted the scope of judicial review in India. Further, there is a vital distinction between the two clauses contained in the respective Constitutions, namely, “Due Process of Law” of the American Constitution and “Procedure established by Law” of the Indian Constitution. Article 21 of the Constitution provides that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. The word “law” in the clause “procedure established by law” does not mean natural law but it implies State made law.If the State makes law through which life or personal liberty of the citizen is deprived of the Supreme Court cannot question it on the ground of natural law or natural justice. The Court can only question the procedure through which the person is deprived of his life or personal liberty. The Supreme Court of India in the famous case of A. K. Gopalan vs. State of Madras 6 accepted its own limitations. It decided that the “Procedure established by Law” is not same as “Due Process of Law” of the American Constitution and by adopting that phrase, the Constitution-makers of India gave the Legislature the final word to determine law.Thus the reasonableness of law cannot be questioned in India by the Supreme Court on substantive grounds. Only the procedural aspect of the judicial review is found in the Indian Constitution but not that of its substantive aspect. Further, the Supreme Court can declare any legislation as ultra vires if it goes against any provision of the Constitution. It can declare any act of the Legislature or the Executive as unconstitutional if it violates any of the Fundamental Rights guaranteed under the Constitution.Justice B. K. Mukherjee correctly assessed the position of our Supreme Court in the following words:- “In India it is the Constitution that is Supreme and Parliament as well as Stale legislatures must not only act within the limits of their respective legislative spheres as demarcated in the three lists occurring in the Seventh Schedule of the Constitution, but Part 111 of the Constitution guarantees to the citizen certain fundamental rights which the legislative authority can on no account transgress. A statute or law to be valid must, in all cases, be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is unconstitutional or not”.


Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. Judicially-restrained judges respect stare-decisis, the principle of upholding established precedent handed down by past judges. 7 Judicial restraint, a procedural or substantive approach to the exercise of judicial review. As a procedural doctrine, the principle of restraint urges judges to refrain from deciding legal issues, and especially constitutional ones, unless the decision is necessary to the resolution of a concrete dispute between adverse parties. As a substantive one, it urges judges considering constitutional questions to grant substantial deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated. The courts should hesitate to use judicial review to promote new ideas or policy preferences. In short, the courts should interpret the law and not intervene in policy-making.”They „restrain‟ themselves from setting new policies with their decisions. They make decisions strictly based on what the Constitution says.

JUDICIAL ACTIVISMJudicial Activism, is the interference of the Judiciary in the decisions or laws made by Executive or Legislature, respectively. With the help of the power of Judicial Review, when the Judiciary either over- turns its own previous precedent or strikes down any of the decision of the other two branches of the government because they are transgressing the Constitutional limits, brings the Judiciary within the

purview of the Doctrine of Judicial Activism. Judicial activism, is an approach to the exercise of power of judicial review, or a description of a judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions. 8

The phrase of judicial activism was introduced by Arthur Schlesinger Jr. in a January 1947 Fortune Magazine article titled The Supreme Court:1947. Schlesinger‟s article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutlege as the „Judicial Activists‟ and Justices Frankfurter, Jackson, and Burton as the „Champions of Self Restraint.‟ Justice Reed and Chief Justice Vinson comprised a middle group. This conflict may be described in several ways. The Black-Douglas group believes that the Supreme Court can play an affirmative role in promoting the social welfare; the Frankfurter-Jackson group advocates a policy of judicial self-restraint. One group is more concerned with the employment of the judicial power for their own conception of the social good; the other with expanding the range of allowable judgment for legislatures, even if it means upholding conclusions they privately condemn. One group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or worse. In brief, the Black-Douglas wing appears to be more concerned with settling particular cases in accordance with their own social preconceptions; the Frankfurter-Jackson wing with preserving the judiciary in its established but limited place in the American system.According to Black's Law Dictionary judicial activism is a”“judicial philosophy which motivate judges to depart from the traditional precedents in favour of progressive and new social policies”. In recent years‟ law making has assumed new dimensions through judicial activism of the courts. The judiciary has adopted a healthy trend of interpreting law in social context. Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. Sometimes judges appear to exceed their power in deciding cases before the Court. They are supposed to exercise judgment in interpreting the law, according to the Constitution. Judicial activists, however, seem to exercise their will to make law in response to legal issues before the Court.

Judges should act more boldly when making decisions on cases, because:

1. Law should be interpreted and applied based on ongoing changes in conditions and values.

2. As society changes and their beliefs and values change, courts should then make decisions in

cases that reflect those changes.(Negi, 2017)According to the idea of judicial activism, judges should use their powers to correct injustices, especially when the other branches of government do not act to do so. In short, the courts should play an active role in shaping social policy on such issues as civil rights, protection of individual rights, political unfairness, and public morality.As Justice Krishna Iyer observed „every judge is an activist either on the forward gear or on the reverse‟. Judicial policy making can be either an activity in support of legislative and executive policy choices or in opposition to them. But the latter one is usually referred to as judicial activism. The essence of true judicial activism is the rendering of decision which is in tune with the temper and tempo of the times. Activism in judicial policy making furthers the cause of social change or articulates concepts such as liberty, equality or justice. It must be an arm of the social revolution. An activist judge activates the legal

mechanism and makes it play a vital role in socio-economic process. 9

In S.R. Bommai v Union of India 10 the judges said that there are certain situations where the political element dominates and no judicial review is possible. The exercise of power under Art.356 was a political question and therefore the judiciary should not interfere. Ahmadi J. said that it was difficult to evolve judicially manageable norms to scrutinize the political decisions and if the courts do it then it would be entering the political thicket and questioning the political wisdom, which the court must avoid.In Almitra H. Patel Vs. Union of India 11 , where the issue was whether directions should be issued to the Municipal Corporation regarding how to make Delhi clean, the Court held that it was not for the Supreme Court to direct them as to how to carry out their most basic functions and resolve their difficulties, and that the Court could only direct the authorities to carry out their duties in accordance with what has been assigned to them by law.There is broad (though not absolute) separation of powers in the Indian Constitution vide Divisional Manager, Aravali Golf Course vs. Chander Haas 12 . The Constitution of India did not provide for the judiciary to be a super legislature or a substitute for the failure of the other two organs. Thus, the need arises for the judiciary to lay down its own limitations.Justice A.S. Anand former Chief Justice of India, in a public lecture cautioned that with a view to see that judicial activism does not become “judicial adventurism”, judges need to be circumspect and self- disciplined in the discharge of their judicial functions. The worst result of judicial activism is unpredictability. Unless judges exercise self-restraint, each judge can become a law unto himself and issue directions per his personal fancies, which will create chaos. Reservations have been expressed in many quarters about some very recent decisions of the Supreme Court.The Indian Supreme Court, while conservative in the initial years, had later a burst of judicial activism through the social philosophies of Justice Gajendragadkar, Krishna Iyer, P.N. Bhagwati, etc. who in the garb of interpretation of Articles 14, 19 and 21 of the Indian Constitution created a host of legal norms by judicial verdicts. Part III of the Indian Constitution enumerates certain Fundamental Rights which are enforceable e.g. freedom of speech, liberty, equality, freedom of religion, etc. On the other hand, Part IV called the Directive Principles of State Policy contain certain socio-economic ideals e.g. right to work, to education, to a living wage, to health etc. which though unenforceable are ideals which the State is directed to strive for. Though Article 37 states that these Directive Principles are unenforceable, the Indian Supreme Court has enforced many of them often by reading them into certain Fundamental Rights e.g. in Unni krishan’s case 13 the right to education was read into Article 21. Even in the Minerva Mills, Supreme Court upheld the provision of the protection of the laws made to give effect to

directive principles, even they violates the fundamental rights enshrined in the Article 14 and 19 of the Constitution.Even And as when the era of judicial restraint stopped, the birth of doctrine of Judicial activism took place, because of the mala fide actions of the other two organs of the government.


Constitutionalism is the character which controls the misuse of powers of an authority of the state. Above discussion clarifies that Judiciary played significant role to establish the rule of law in India and made balance between the organs of the Government. However, the charges of Judicial activism have been regularly imposed upon, but the court succeeds in the role of the guardian of the Constitution as assigned by the Constitution of India itself.


1. Barnett, H. Constitutional & Administrative Law (2001, 3rd Edition) Chapter 5: The Separation of Powers, p. 125, Cavendish Publishing, London.

2. W200: Understanding Law, Manual 1 (2003) Units 5 7: How the English Legal System Works: F: Judicial Review, pp.212-216, Open University, Milton Keynes

3. His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr.: (1973) 4 SCC 225

4. Indira Nehru Gandhi (Smt.) vs Raj Narain & Anr AIR 1975 SC 1590

5. Delhi Development Authority v. UEE Electrical Engineering(P) Ltd., (2004) 1 SCC 213

6. AK Gopalan v State of Madras Citation: AIR 1950 SC 27

7. Abhishek Negi, Judicial Activism and Judicial Restraint, Legal Services India (Jan. 14, 2017, 06:13 PM),

8. Kermit Roosevelt, Judicial Activism, Encyclopaedia Britannica (Jan. 14, 2017, 10:00 AM),

9. Mohita Negi, Judicial Activism: Origins, Meaning, Causes and Course, Your Article Library (Jan. 14, 2017, 11:50 AM),


10. S. R. Bommai v. Union of India. S. R. Bommai v. Union of India, AIR 1994 SC 1918

11. Almitra H. Patel Vs. Union of India (1998) 2 SCC 416

12. Divisional Manager, Aravali Golf Course vs. Chander Haas (2008) 1 S.C.C. 683

13. Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors. 1993 AIR 217

14. Minerva Mills Ltd. and Ors. v. Union Of India and Ors, AIR 1980 SC 1789