CONSTITUTIONALIS

M&
CONSTITUTIONAL
SPIRIT

By: Surabhi Desai

FY. LLM
Comparative Public Law
CONSTITUTION
 A body of fundamental principles or established
precedents according to which a state or other
organization is acknowledged to be governed.
 The system of fundamental principles according to
which a nation, state, corporation, or the like, is
governed.
 In Black Law Dictionary , “The fundamental and
organic law of a nation or state that establishes the
institution and system of government, defines the
scope of governmental sovereign powers and
guarantees individual civil rights and civil liberties”.
CONSTITUTIONALISM
 Constitutionalism can be defined as the doctrine
that governs the legitimacy of government action,
and it implies something far more important than
the idea of legality that requires official conduct to
be in accordance with pre-fixed legal rules.
 In other words, constitutionalism checks whether
the act of a government is legitimate and whether
officials conduct their public duties in accordance
with laws pre-fixed/ pre-determined in advance.
 Having a constitution alone does not secure or
bring about constitutionalism.
 Except for a few states which have unwritten
constitutions, today almost all the nations/states
in the world have constitutions.
 This does not, however, mean that all these states
practice constitutionalism. That is why
constitutionalism is far more important than a
constitution.
 DIFFERENCE BETWEEN
CONSTITUTION AND
CONSTITUTIONALISM
 The main difference between constitution and
constitutionalism lies in the fact that the
constitution is generally a written document,
created by the government (often with the
participation of the civil society), while
constitutionalism is a principle and a system of
governance that respects the rule of law and
limits the power of the government.
 While constitution is often defined as the “supreme law of
a country,” constitutionalism is a system of governance
under which the power of the government is limited by
the rule of law. Constitutionalism recognizes the need of
limiting concentration of power in order to protect the
rights of groups and individuals.
 In such system, the power of the government can be
limited by the constitution – and by the provisions and
regulations contained in it – but also by other measures
and norms. The idea of constitution has changed
significantly compared to the first examples seen in
ancient Greece, while the concept of constitutionalism has
grown around the principle that the authority of the
government is derived from and limited by a set of rules
and laws.
Features (Characteristics) of
Constitutionalism
 According to Barnett, constitutionalism embraces
limitation of power (limited government),
separation of powers (checks and balances) and
responsible and accountable government.
Henkin identifies popular sovereignty, rule of
law, limited government, separation of powers
(checks and balances), civilian control of the
military, police governed by law and judicial
control, an independent judiciary, as essential
features (characteristics) of constitutionalism.
 We shall thus focus on the following basic elements:
• 1. Popular sovereignty
• 2. Separation of Powers (checks and balances)
• 3. Responsible and accountable government
• 4. Rule of law
• 5. An independent judiciary
• 6. Respect for individual rights
• 7. Respect to self-determination
• 8. Civilian control of the military
• 9. Police governed by law and judicial control
 1- Popular Sovereignty
Popular sovereignty envisages the fact that the
public is the source or fountain of all governmental
authority. The legitimacy of any governmental
power is derived from the consent of the public. In
other words, the government acquires its mandate
from the people. The source of all sovereignty lies
essentially in the nation. No corporate
body, no individual may exercise any authority that
does not expressly
emanate from it.4 Even though there is a certain
sovereign entity which is
empowered to govern, ultimate sovereignty resides
in the nation.
The power of such sovereign entity emanates from
the public.
In other words, the public is involved in the decision
making process
which may take different forms. The most obvious
one is election of
representatives. The public is entitled to elect
representatives who represent
it. However, such election should be free, open
(transparent) and fair.
 2-Separation of Powers (Checks and balances)
Under constitutionalism, power is not
concentrated in any one organ of the
state. It is diffused (divided) among the three
organs of the state i.e., the
legislature, the executive and the judiciary. If
power is monopolized by any
one organ of the state there could be abuse of
power, tyranny and
dictatorship. Nor can there be liberty.
a) USA
In the United States of America, the three organs of
state and their respective
powers and duties are enshrined in the constitution.
Similarly the system of
checks and balances is embodied in the constitution.
According to the US
Constitution, Congress (i.e., the House of
Representatives) and the Senate are
the sole law making power. Any bill which is initiated
in and passed by the
House of Representatives shall be submitted to the
Senate.
The Senate shall deliberate on the bill. If the bill
is accepted by the Senate, it shall be
submitted to the President for approval. If the
President approves such Bill or
fails to make his objections within 10 days
(excluding Sundays), the draft bill
shall become law. However, if the President
objects to the draft bill, he shall
return the bill to the House where it originated
together with his objection.
After the bill becomes law, it can still be subject to the
scrutiny of courts.
Even though no inherent or express power is given to the
courts by the Constitution, courts are empowered to
check the constitutionality of such law.
If it is found contrary to the constitution, it shall be
declared null and void.
Therefore, courts in USA are endowed with the power of
judicial review.
The principal feature of the US Constitution is that it
does not allow an individual to exercise different powers
or act in different capacities at the
same time.
b) Germany
In the Federal Republic of Germany, the parliament is
composed of the Bundestag which is directly elected by the
constituency and the Bundesrat which represents the
different Landers. Federal laws adopted by the Bundestag
shall be submitted to the Bundesrat for its consent.
It shall become law when the Bundesrat consents or fails to
make a demand for a joint committee within three weeks
(Articles 77(2) or fails to enter an objection within two weeks
(Article 77(3) or withdraws its objection or if the objection is
overridden by the Bundestag. The laws passed by the
parliament after counter-signature by the federal Chancellor
shall be certified by the president and are promulgated.
After promulgation, the law may be subject to
constitutional/judicial review. The
Federal Constitutional Court is empowered to
check the compatibility of such
laws with the Basic law. According to Article 93 of
the Basic Law, even individuals are allowed to
lodge their complaint to the Constitutional Court.
 3- Responsible and Accountable Government
In the democratic nations (countries) people
perceive their government as their own servant.
The government is there to serve their interest or
act as the steward of their interest. The
governments assume office in the name and on
behalf of the public for the benefit of the public.
Article 15 of the French Declaration of the
Human Rights recognizes the right of the society
to ask a public official to account for his/her
administration.
 4- Rule of Law

Rule of law denotes a government of laws and not of men.

Individuals working within the state machinery are expected
to exercise their official
duties and responsibilities in accordance with the law. In
other words, rule of law represents the supremacy of law.
According to Dicey,rule of law envisages the following:-
• No one is punishable except for a distinct breach of law
established in
the ordinary legal manner before the ordinary courts of the
land;
• No person is above the law;
• Courts play a vital role in protecting the rights of
individuals.
 5- An Independent Judiciary

Rule of law envisages a government of laws. A

government is obliged to act according to laws set by
the legislature. However, if there is failure to adhere
to the laws, an independent judiciary shall check
such events.
An independent judiciary is also necessary to
maintain the supremacy of a constitution. If the
legislature comes up with a law which is contrary to
the constitution, an independent judiciary, through
the principle of judicial or constitutional review, has
the power to declare it null and void.
 6- Ensure and Respect Individual Rights

The incorporation of the rights of individuals in a

constitution and other laws is essential, but not an end by
itself. It is a means to an end. It must be seen that these
rights are duly respected and protected.
Article 1 of the UN Charter included the promotion and
encouragement of respect for human rights and fundamental
freedoms for all without distinction as to race, sex, language
or religion. Similarly Article 55 of the UN Charter states that
the United nations shall promote universal respect for and
observance of human rights and fundamental freedoms for
all without
distinction as to race, sex, language, or religion. In addition
Article 56 of the Charter imposes obligation on member
states to ensure the observance of Article 55 of the Charter.
 7- Respect for Self-determination

Self-determination refers to the right of a people

living in a territory to determine the political and
legal status of the territory, for example, by
setting up a state of their own or by choosing to
become part of another state.
 8- Civilian Control of the Military

“Our principle is the party commands the gun, and

the gun must never be allowed to govern the party.”-
Mao Zedong.
According to the above statement, the party is
sovereign or autonomous. It is the party which
governs the gun (the military). To some extent the
theme of Mao Zedong’s statement seems to hold true
in the contemporary world as well. In democratic
countries, it is the democratically elected officials
who are allowed to govern or control the military,
although technical affairs are left to the military
personnel.
 9- Police Governed by Law and Judicial Control
The prime responsibility of ensuring peace and
order is borne by the police. It shoulders the duty of
bringing wrong-doers to justice. However, when the
police discharge such duties, constitutionalism
requires them to honor and respect the rights,
dignity and freedoms of individuals including
wrong-doers and persons suspected of offences. It is
to be noted that a suspect has the right to be
presumed innocent until proved guilty by the
competent court.
Similarities between Constitution and
Constitutionalism
 Constitution and constitutionalism are overlapping
concepts, although the first refer to a written body
of laws and legislation and the second is a complex
principle and system of governance. Some of the
similarities between the two include:
 Both refer to the limits and features of the system of
governance of a country. Constitutionalism would
not exist without a constitution, and a constitutional
way of governing a country requires limits and
boundaries to the central authority;
 Both influence the actions of both government and
population. Besides providing a framework for political
and institutional structure, the constitution sets out the
main rules that all citizens should respect. Furthermore,
ruling in a constitutional manner means that the
government applies the regulations outlined in the
constitution to limit and manage the citizens’ acts – always
respecting individual and collective rights;
 Both protect and preserve individual and collective rights,
preventing the central government from abusing of its
powers and infringing on the citizens’ basic freedoms; and
 Both have evolved and significantly changed during the
last few centuries, benefiting from the spread of
democratic ideals and becoming key features of the
majority of Western countries.
CONSTITUTIONAL SPIRIT
 The spirit of the Constitution is defined as the
aim or purpose of the Constitution when it was
written or formed.
 The Preamble is considered as the
Constitutional spirit of India as it includes the
aims and aspirations of the people of India who
sacrificed their lives for the attainment of the
country’s Independence.
In the State (NCT of Delhi) v. Union of India (2018),
the court said that:
“The constitutional functionaries owe a greater
degree of responsibility towards this eloquent
instrument for it is from this document that they
derive their power and authority and, as a natural
corollary, they must ensure that they cultivate and
develop a constitutional spirit where every action
taken by them is governed by and is in strict
conformity with the basic tenets of the Constitution”.
Prof. B. O. Nwabueze in his book
“Constitutionalism in the Emergent States, 1973
stated that “the successful working of a
constitution depends upon the ’constitutional
spirit’, that is, a spirit of fair play, self-restraint and
mutual accommodation of differing interests and
opinions. There can be no constitutional
government unless the wielders of power are
prepared to observe the limits upon governmental
powers.”
 InS.R. Chaudhuri v. State of Punjab (2001),
constitutional restraints must not be ignored or
bypassed if found inconvenient or bent to suit
“political expediency”. We should not allow the
erosion of principles of constitutional spirit.
 Reference:

 Mizan Law Review by Maru Bazezew

 Legalserviceindia.com
 Blog.ipleaders.in
 www.differencebetween.net
 en.wikipedia.org/wiki/Constitutionalism
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