Class No – 1 (Zoom Meeting Dated: 30th April 2020)

• Topic: Constitution and Constitutionalism – The distinctive feature of

constitution. (First Topic of Law Optional UPSC Syllabus of Constitutional Law)

Constitution and Constitutionalism

1. The Constitution is a source of and not an exercise of legislative power

2. According to SCHWARTZ, in the U.S.A., the word Constitution means “a written
organic instrument, under which governmental powers are both conferred
and circumscribed”. He emphasizes that “this stress upon grant and limi-
tation of authority is fundamental”.
3. The Constitution is an organic living document. Its outlook and expression
as perceived and expressed by the interpreters of the Constitution must be
dynamic and keep pace with the changing Times.
4. Constitutionalism recognizes the need for government but insists upon
limitations being placed' upon governmental powers.

5. Constitutionalism envisages checks and balances and putting the powers of

the legislature and the executive under some restraints and not making them
uncontrolled and arbitrary

6. The antithesis of Constitutionalism is despotism. Unlimited power may lead

to an authoritarian, oppressive, government which jeopardizes the freedoms
of the people
7. Constitutions spring from a belief in limited government’.
8. The idea of Constitutionalism is not new. It is embedded deeply in human
thought. Many natural law philosophers have promoted this idea through
their writings.

9. Following are the principles and norms which promote Constitutionalism in

a country: a written Constitution, federalism, free elections, independent
judiciary with judicial review, fundamental rights, doctrine of rule of law and
separation of powers (Rule of Law implies the absence of arbitrary power,
equality before law, and individual liberties).

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Constitutionalism, Indian Perspective

1. Indian constitutionalism distinctive was its self-consciously cosmopolitan
character.
2. There are major substantive tensions that have defined the contours of
constitutionalism in India,

a. Constitutional Morality
Ambedkar invoked the phrase ‘constitutional morality in a famous speech
delivered on 4 November 1948. In the context of defending the decision to
include the structure of the administration in the Constitution, he quoted
at great length the classicist, George Grote. For Grote, the prevalence of
constitutional morality was ‘the indispensable condition of a government
at once free and peaceable’. (Cite Sabrimala Case as well as recent
example)

For Grote, ‘constitutional morality’ was not simply the substantive morality
of a constitution, a meaning that is often attributed' to the phrase today.

b. Constitutional Tensions

In its very design, many of the major tensions that have characterized
Indian politics and the formation of the Indian State have actually been
codified into law. Some of these tensions are familiar in constitutional law,
such as the tension posed by the separation of powers.

3. The expanding scope of constitutionalism merits some reflection, and

provides an interesting window on to the setting of Indian constitutional law.
A striking feature of the founding imagination was a penchant for codification.

The Constitution itself was not just concerned with the rights of citizens, the
limits of government power, democracy, or social justice. It was also very
much part of a State building project, where the framers wanted to protect
many institutions of the State from the vagaries of ordinary politics

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Food for Thought: - In such a context, one aspect that shapes constitutional
doctrine is the idea of compromise. A constitutional culture can be subject to two
kinds of compromises. The first is a compromise between norms and social forces.
The second kind of compromise can be a compromise between competing and
sometimes incommensurable values
Feature of Indian Constitution –
The list is very general, can be found in any standard text book. To name a few,
Long list of Fundamental right, Unitary nature of judiciary, Not a clear separation
of power. Union More powerful, Secularism (it is very important) etc

Nature of Indian Constitution – Unitary v. Federal

While writing any question related to above topic, in manner question is framed do
mention articles supporting both points i.e federal character and unitary character.
Do mention following case laws with quotation from judge.

Major Case law –

Rajasthan v. Union, Beg C.J. said : “In a sense, therefore, the Indian Union is
federal. But, the extent of federalism in it is largely watered down by the needs of
progress and development of a country which has to be nationally integrated,
politically and economically coordinated, and socially, intellectually, and spiritually
uplifted."

In W.B. v. Union of India the majority judgment of the Sup. Ct. held that the Union
was entitled to the coal mines vested in the State of West Bengal. The discussion
on Federalism and Sovereignty in the majority judgment is very unsatisfactory, and
instead of considering it in detail, if would lead to a briefer and clearer discussion
of Federalism if the so-called “unitary” features are considered independently and
shown to be present in admittedly federal constitutions.

View of major constitutional expert

1. In the opinion of Prof. Wheare, the Indian Constitution is almost ‘quasi-
federal….that is a unitary State with subsidiary federal features, rather
than a federal State with subsidiary unitary features.
2. Jennings has characterized it as ‘a federation with a strong centralizing
tendency’.
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3. Austin and A.H. Birch used the term “Cooperative federalism" for Indian
system i.e. it is neither purely federal nor purely unitary, but a combination
of both.
4. Dicey holds that the extent of federalism in India is largely watered down by
the needs or progress and development of a country which has to be
nationally integrated, politically and economically co-ordinated, and
socially, intellectually and spiritually uplifted.
Seeravai’s View of Nature of Indian Constitution

He mostly supported Indian constitution as a federal constitution with following

arguments –
1. It is no objection to our Constitution being federal that the States were not
independent States before they became parts of a Federation. A Federal
situation existed, when the Br. Parliament adopted a federal solution in the
G.I. Act, 35, and when the Constituent Assembly adopted a federal solution
in our Constitution.

2. Parliament’s power to alter the boundaries of States without their consent is

a breach of the federal principle, but in fact it is not Parliament which has,
on its own, altered the boundaries of States. By extra constitutional agitation,
the States have forced Parliament to alter the boundaries of States. In
practice, therefore, the federal principle has not been violated.

3. The allocation of the residuary power of legislation to Parliament (i.e. the

Federation) is irrelevant for determining the federal nature of a Constitution.
The U.S. and the Australian Constitutions do not confer the residuary power
on the Federation but on the States, yet those Constitutions are indisputably
federal.

4. External sovereignty is not relevant to the federal nature of a Constitution,

for such sovereignty must belong to the country as a whole. But the division
of internal sovereignty by a distribution of legislative powers is an essential
feature of federalism, and our Constitution possesses that feature.
Note: This Document is prepared for law optional student by Aditya Tiwari, who teaches law optional at
De Facto IAS, Karol Bagh, Delhi. Formerly he taught at Lukmaan IAS.

www.DeFactoLaw.in , is a sister website of De Facto IAS, Dedicated to law optional preparation. Law
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