WHAT ARE THE PROS AND CONS OF CONSTITUTIONALISM?

June 27, 2022

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By:Manshaa Dhar

Introduction:

The doctrine of constitutionalism means that a government authority is determined by a body of laws or constitution. The concept of constitutionalism is a mechanism that provides legitimacy to a democratic government. However, the legality of the acts of the officials in a government setup. Constitutionalism is different from a written constitution. There are many basic principles that are developed under the concept of constitutionalism which are separation of powers, judicial control, and accountable government. Just like any other doctrine, constitutionalism also has pros and cons. 

WHAT IS CONSTITUTIONALISM? 

The idea of constitutionalism is generally credited to the political theorists like John Locke and the founders of the American republic, whereby the government has been limited in accordance with the constitution, with the respect that powers, its authority, or legitimacy. Now let’s dwell upon the constitution. It is a set of norms creating, structuring, and possibly defining the limits of government power or authority. The concept of constitutionalism has been recognized by the supreme court in Rameshwar Prasad v. Union of India. The court stated, “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.” In Coehlo v. State of Tamil Nadu, the court held that constitutionalism is a legal principle that requires control over the exercise of governmental power to ensure that the democratic principles on which the government is formed shall be destroyed. 

PRINCIPLES OF CONSTITUTIONALISM:

  1. Separation of powers- There are three branches i.e., legislature, executive, and the judiciary. This separation of power helps in creating a situation of check and balance and preventing the consolidation of power. It is expected in a democratic setup, that the elected government that will serve the people. 
  2. Popular sovereignty- The concept of popular sovereignty believes that the government is driven by the popular vote and the will of its people, this power of the individual cannot be taken away from any entity, whether by other individual or the government itself. 
  3. Rule of law- Rule of law means that no man is above law. 
  4. Independent judiciary- The independent judiciary forms the foundation of constitutionalism. Article 50 of the constitution of India also provides for the separation of the judiciary and the executive.
  5. Individual rights- Individual rights have not only been protected by the courts but have also been interpreted in a way that broadens their effect and implementation. The Indian judiciary helps in the enforcement of these rights. 
  6. Civilian control of the military- According to the beliefs of constitutionalism, the military should be under the guidance of the civilian government, so that there is no interference by the military in the democratic setup. 
  7. Police Accountability- Constitutionalism emphasizes the vision that police will uphold the rights, freedom, and dignity of individuals. 

PROS OF CONSTITUTIONALISM:

  1. Separation of power as a concept under constitutionalism ensures that the various organs of the constitution are kept under check so that no one organ encroaches upon the jurisdiction of the other organ. 
  2. Constitutionalism ensures that the government doesn’t become authoritative. As a result, certain limitations are put upon by either giving rights to the people, like fundamental rights or by placing restrictions on the power of the government. 
  3. The idea of constitutionalism is taken primarily from the theory of the limited state by John Locke. According to this theory, the state is a creation of a social contract, entered into by a man and thus the state is an instrument for fulfilling the aspiration of the man. 
  4. Constitutionalism ensures that the state is not encroaching upon the people’s life and liberty and is critical for a democratic polity. 

CONS OF CONSTITUTIONALISM:

  1. Some the critics believe that constitutionalism limits and restricts the power of the state. 
  2. Since constitutionalism there is a set of rules and laws which govern the government, it doesn’t leave any scope for morality and common sense. 
  3. The supreme law of the country i.e. constitution, although flexible in nature, it is still difficult to amend and make changes to it. Since the process of making amends to the constitution is difficult, the entire concept of constitutionalism breaks it downs. 
  4. The principle of constitutionalism such as police accountability and the concept of checks and balance is a mere utopian ideas. 

CONCLUSION:

Constitutionalism is the result of good governance and democracy in the world. The idea of check and balances make the government more accountable. However, the concept of constitutionalism forms a good practice of democracy and constitutional government, both of which are critical to achieving development for all. As Farrah Fawcett rightly said “Everything has positive and negative consequences.”, constitutionalism has its own set of positives or pros and negatives/cons.

Refrences:

  • Writ Petition (C) NO.257 OF 2005
  • (2007) 2 SCC 1: AIR 2007 SC 861
  • A.(2021, March 22). General Data Protection Regulation(GDPR) Guidelines BYJU’S. BYJUS. https://byjus.com/free-ias-prep/constitutionalism-upsc-notes/
  • Amruta, P. (2022, March 14). constitutionalism indian polity notes. Prepp. https://prepp.in/news/e-492-constitutionalism-indian-polity-notes