UNIT-I

Meaning and Definition

Comparative public law can be defined as a comparative study or analysis of the laws of
different countries which govern the state and its relationship with its subjects. Therefore, it
encompasses the comparative study of constitutional as well as administrative law of
different jurisdictions. Comparative public law has played a key role in the drafting of
constitutions of new democracies like India. The role of comparative public law is very
evident in the Indian Constitution.

The role of comparative public law does not stop after the Constitution has been drafted.
Subsequent constitutional developments take place through judicial decisions and academic
research based on the use of foreign precedents and comparative constitutional literature. In a
number of landmark judgments of the Supreme Court of India, relating to equality,
expressional freedom, business, property right, right to life and personal liberty, death
penalty, right to privacy, religious freedom and minority rights, one can find reference to
foreign judgments in the course of interpretation of constitution and laws.

The Significance Of Comparative Public Law

1) Globalisation and advancement of technology- The study of comparative public law,

though in its nascent stage, has gained popularity due to industrialisation, globalisation and
liberalisation. Countries do not exist in isolation and the world has now become one global
market due to the fast-emerging technologies and dissolving national boundaries. Individuals
have started to perceive every aspect of their lives in the global context. For example, the
issue of personal liberty and privacy in the era of technological developments has created
issues that required the extension and acknowledgement of traditional constitutional
principles to cyberspace. In light of this era, the social, economic and legal problems faced by
many countries are either of a similar kind or transnational. Therefore, the role of
comparative public law comes into the picture by firstly, analysing the stand taken by other
jurisdictions with regard to the issue which one state is facing now, and secondly, by
addressing the transnational issues with international cooperation, for which a clear
understanding of laws of other nations is required.
2) Interpretation of laws- There is a general presumption that all the countries of the world
face more or less the same or similar kind of issues relating to public law and therefore, a
comparative study of different legal systems with respect to their approach of tackling the
issue prove helpful in addressing the issues faced in different jurisdictions. Comparative
public law plays an important role by helping the judiciary in discharging their function in
primarily two ways-
 “When there is a need to interpret certain aspects of law which have not been discussed
in great detail by the legislature”- If the judiciary is faced with a situation wherein there
is a need to interpret the law, but the intention of the legislature is not very clear, the
judiciary can rely on the comparative interpretation of laws in different jurisdictions to
get an understanding as to what could be beneficial to the society at hand. In doing so, it
can either apply the same interpretation or modify it, by tailoring it to the present as well
as the future needs of the society.
 “When there is a lacuna in the existing law of the land”- If a situation arises wherein the
law of the land has not addressed a particular legal issue, the judiciary can take recourse
to comparative public law analysis for understanding which approach is best suited for
the country. This could be done by researching how a particular country has solved the
public law issue at hand, and whether the same or similar approach can be adopted, or
there is a need to modify such an approach. There have been a number of instances
where the Indian judiciary has referred to a comparative analysis of the stand of different
jurisdictions with respect to a particular legal issue, to arrive at a conclusion. For
example, the majority opinion in Justice K S Puttaswamy v. Union of India highlighted
the fact that the concept of proportionality, which is used to balance rights and
competing interests, has been adopted by European law. Also, an entire section of the
majority opinion is dedicated to comparative law analysis of the recognition of right to
privacy as a fundamental right under different jurisdictions. A similar approach was
adopted by the Apex Court in Joseph Shine v. Union of India, Navtej Singh Johar v.
 Union of India and Common Cause v. Union of India, where the Supreme Court
analysed and relied on the stand of foreign jurisdictions with respect to adultery,
consensual sexual acts between homosexuals and euthanasia and living will,
respectively.
3) Understanding the differences of different legal systems of the world- The historical
development of any society plays a significant role in the development of public law of that
jurisdiction, with respect to the issues they faced and what was their approach while dealing
with it. Understanding the historical development of the system of governance prevalent in
the major legal systems helps in understanding how universally the premises of justice and
other values are shared and what moral assumptions, cultural traditions, historical
experiences and economic considerations are reflected in a given society’s attitude towards
the problem of social control.
4) Adopting the best practices- Comparative public law provides a clarification of the
perspectives, conditions, and alternatives for all communities for securing and enhancing
democratic values. This comparison helps in recognising and adopting the best practices from
the laws around the world into our legal framework. The recognised best practices, with
respect to a particular public law issue, helps in formulating appropriate laws and policies to
deal with the present issues and the issues which might arise in future. This further aids in
making the legal system more adaptive to the changing needs of society.
5) International world order and harmonization- Comparative public law enables
understanding between different nations with a view to reducing world tension. It helps in
resolving the differences in the public laws of different countries that are at a similar stages of
development. It further helps in reducing the number of conflicts prevalent among the
nations, which can be attributed to political, moral, social and historical differences. It further
plays a role in the harmonization of law and bringing uniformity and reducing the
differences.

Concept of Public Law

Public Law is that part of law, which governs relationship between the State
(government/government agencies) with its subject and also the relationship between
individuals directly concerning the society. The Public Law deals with the social problems in
the broad context and may include the following heads: Constitutional Law, Administrative
Law, Criminal Law and Criminal Procedure, Law of the State considered in its quasi-private
personality, Procedure relating to the State as so considered and Judge made Law. In short,
Public Law governs relationship between the State with its citizens and also relationship
between individuals directly concerning the Society. Constitutional Law, Administrative
Law, Criminal Law and Criminal Procedure are the subject matter of Public Law.

History of Public Law- Ulpian, a Roman jurist, established the distinction between public
and private law, arguing that “public law is that which regards the formation of the Roman
commonwealth, private law is that, which respects individuals’ interests.” In addition, he
defines public law as the legislation governing religious affairs, the priesthood, and State
offices. The law was conceived of in Roman law as a set of interactions between people,
between things, and between people and the state. The latter of these three ties was public
law. However, Roman lawyers paid little attention to this field, preferring to concentrate on
private law. It was, however, extremely important in Teutonic civilization, according to
German legal historian Otto von Gierke, who referred to the Teutons as “the father of public
law.”

International Law
International laws are a set of rules, agreements and treaties that are binding between
countries. Countries come together to make binding rules that they believe will benefit the
citizens. It is an independent system of law existing outside the legal framework of a
particular state.

The Indian constitution and international law have links dating back to the pre independence
days when India was a separate member of the league of nations even during the times of
British rule.

The Indian Constitution which was adopted on 26th November 1949 was greatly influenced
by the values imbibed in The Universal Declaration of Human Rights(UDHR) which is an
international document adopted by the United Nations General Assembly with the motive
to protect and preserve the basic fundamental rights which all human beings are entitled to.

 The Fundamental Rights in Part III of the constitution and the Directive Principles of

state policy in Part IV of the constitution can be compared with the UDHR and many
common points can be seen. Further it can be seen that the International Covenant on
Civil and Political Rights (ICCPR) is reflected in Part III of the constitution
whereas The United Nations Economic and Social Council (ECOSOC) is reflected in
 Part IV and the Preamble to the constitution, thus greatly benefiting the scope of human
rights law in India.
 Fundamental Duties: Article 51 A of the constitution of India gives force to Article
29(1) of the UDHR which mentions the duties of the citizens towards the state which help
to build the nation and understand the importance of individual responsibility.
 India is a party to more than one hundred and sixty treaties and conventions dealing
with various fields of law like air law, space law and maritime law. The Government is
responsible for implementation of the international treaties and agreements to which India
is a party.
 The Legal & Treaties Division was established in the Ministry of External Affairs in
1957 as a nodal point to deal with all aspects of international law advice to the
Government of India. It advises the Ministry of External Affairs in particular and other
Ministries and Departments on issues pertaining to international law and treaty, including
treaty negotiations, practice and interpretations.

Constitutional Provisions
Article 51: According to the provisions in this Article, the state has the responsibility to
promote international peace and security in the nation and maintain just and honourable
relations with other nations. The Article specifically mentions that the state shall respect all
the provisions related to international law and shall make its best efforts to fulfill its treaty
obligations and also encourage the settlement of international disputes with the help of
arbitration.
 This Article tells the state to respect international law but does not explicitly make it a
part of the Indian laws.
 Article 51 of the constitution is a directive principle which is to be understood with
Article 37 of the Constitution of India.

▪ International law and the powers of the Executive:

 Article 53: It says that the executive power is conferred to the president of India and
the president shall exercise them directly in accordance with the constitution of India or
through the officer’s subordinate to him.
 When exercising his power directly, the president should take the advice of the council
of ministers.
  Although all executive functions are said to be executed in the name of the president,
they are subject to the provision that they must not infringe the powers of the legislature
and the judiciary.
 Also, every contract entered into by India shall be made in the president’s name.
 Article 73: The executive power of the union is extended to all the matters with respect
to which the parliament has the power to make laws subject to the provisions of the
constitution or to any other laws made by the parliament.
 Since Article 73 of the Constitution of India puts no restriction on the powers of the
executive with relation to international law, this allows the executive to enter into any
type of treaty obligations.

▪ Legislative powers of the government:

Article 253 is the specific Article that gives the parliament the special power to legislate and
pass laws in order to implement international agreements.
According to Article 253, the parliament has the sole right to make laws for the whole or any
part of the territory of India with the motive of executing an international treaty, agreement or
convention with other countries or any decision made at any association or conference.
Thus Article 253 empowers the parliament to pass laws on matters mentioned in list II of
schedules VII in order to execute international treaties, agreements and conventions.
Indian Judiciary + International Law
 In the case of Jolly George Verghese vs Bank of Cochin (1980), it is stated that unless the
municipal law is altered to accommodate the treaty, what is binding on the court is the
former and not the latter.
 Further, the supreme court in the case of State of West Bengal vs Kesoram industries
(2004) reemphasized that India obeys the doctrine of dualism and stated that any treaty
that has been entered into by India cannot become the law of the land unless the
parliament passes a law as under section 253 of the constitution of India.
 In the landmark case of Vishaka vs the state of Rajasthan(1997), the court while drafting
the guidelines on sexual harassment of women at the workplace referred to many
international conventions and norms which were relevant for the purpose of guaranteeing
gender equality, right to work with dignity and the adherence to Article 14, 15, 19(1)(g)
and 21 of the constitution.
 In the case of Neelabati Behera vs. State of Orissa(1993), the court relied upon Article
9(5) of the Covenant on Civil and Political Rights (1966) while granting compensation to
the victim for the matter of custodial death.
 In the case of Chairman Railway Board vs. Chandrima Das(2000), the court utilized the
principles of the Universal declaration of human rights while widening the scope of
Article 21 of the constitution by providing security to rape victims of foreign nationals.
Constitutional Law-
The Constitutional law means the rule, which regulates the structure of the principal organs
of the Government and their relationship to each other, and determines their principal
functions. The rules consist both of legal rules enacted or accepted as binding by all who are
concerned in Government. Constitutional Law The primary function of Constitutional Law is
to ascertain the political centre of gravity of any given State postulating the supremacy of law
in the functioning of State. In India, the Constitution makes India: Sovereign, Socialist,
Secular, Democratic, Republic with a Federal System with Parliamentary form of
Government in the Union and the States; and with an Independent Judiciary. It also
establishes the structure, procedures, powers and duties of the government and spells out
basic human rights which are fundamental in the governance of Nation in the form of
Fundamental Rights and Directive Principles of State Policy. Constitutional Law is a branch
of Public Law. It determines the political organization of the State and its powers, while also
setting certain substantive and procedural limitations on the exercise of governing power.
Constitutional Law consists of the application of fundamental principles of law based on the
document, as interpreted by the Supreme Court. In the words of Salmond, “Constitutional
Law is the body of those legal principles which determine the Constitution of a State- i.e., the
essential and fundamental portions of the State’s organization.”
Administrative Law
As per Holland, Administrative Law provides for the manner of activities or the various
organs of the Sovereign Power as provided by the Constitution. In this sense Administration
has been defined as ‘the exercise of political powers within the limits of the Constitution as
the total concrete and manifoldly changing activity of the State in particular cases as the
functions, or the activity, of the Sovereign Power’. It may fairly be said to include the making
and promulgation of laws; the action of the government in guiding the State in its foreign
relations; the administration of justice; the management of the property and business
transactions of the State; and the working in detail, by means of subordinates entrusted with a
certain amount of discretion, of the complex machinery by which the State provides at once
for its own existence and for the general welfare. It deals, with the collection of the revenue,
the collection of statistic, international trade, manufacturing, pollution, taxation, and the like.
This is sometimes seen as a sub-category of Civil Law and sometimes seen as Public Law as
it deals with regulation and public institutions. The Administrative Laws are enforced by the
executive branch of a government rather than the judicial or legislative branches (if they are
different in that particular jurisdiction). According to Vago Steven, “Administrative Law is a
body of the law created by administrative agencies in the form of regulations, orders, and
decisions.”

Alternate- Administrative law is the body of law that governs the activities of administrative
agencies of the government which comprise of rulemaking or legislation (when delegated to
them by the Legislature as and when the need be), adjudication (to pronounce decisions while
giving judgements on certain matters), implementation/enforcement of public policy.

SCOPE: Administrative law determines the organization, powers and duties of administrative
authorities. The emphasis of Administrative Law is on procedures for formal adjudication
based on the principles of Natural Justice and for rule making.

The concept of Administrative Law is founded on the following principles:

a) Power is conferred on the administration by law
b) No power is absolute or uncontrolled howsoever broad the nature of the same might be.
c) There should be reasonable restrictions on exercise of such powers depending on the
situation.

Though administrative law is as old as administration itself since they cannot exist separately,
in India the early signs/existence of administrative law could be found in the treatises written
during the reign of the Maurya, Guptas, Mughals as well as East India Company(modern
administrative law). It is based on the concept of rule of law that supports Natural Justice (to
adjudicate based on impartiality, unjustness and the prescribed laws and legal methods
instead of arbitrariness and abuse of official power on the part of govt. while serving the
people and deciding cases brought before its Tribunals, etc. Natural justice is basically
applied in cases where there are no laws prescribed, here the individual has to be given an
opportunity to be heard and the judgement is to be taken into consideration the particular
facts and cases of the case and the judgement should be free from bias). It is to prevent
violation of people's rights by officials in power. Administrative law specifies the rights and
liabilities of private individuals in their dealings with public officials and also specifies the
procedures by which those rights and liabilities can be enforced by those private individuals.
It provides accountability and responsibility in the administrative functioning. Also, there are
specified laws and rules and regulations that guide and direct the internal administration
relations like hierarchy, division of labour, etc.
SIGNIFICANCE: It is very significant because if it did not exist then the very concept of
having a democracy and a government to work for the people would be self-defeating
because then there would be no responsibility or accountability of the public officials to
anybody and the administration would run arbitrarily thus creating a huge monster that would
eat up the very system. There would be an upset in the balance in areas such as police law,
international trade, manufacturing, environmental, taxation, broadcasting, immigration, and
transportation, etc.

REASONS FOR GROWTH:

1) Rise in complexity warranted handling of variable by the state authorities in order to
provide functioning in that area with necessary certainty and prescriptions.
2) Industrial revolution that resulted in the coming up of cities and new types of economic
transactions necessitated handling of affairs by govt in order to facilitate production, supply
and exchange of products and services.
3) Technological inventions and the increasing specialization have called for the increased
need of specialised handling of affairs by govt officials.
4) To allow necessary flexibility in the administrative system so that the challenges arising
due to social and economic factors could be addressed more adequately and efficiently.
5) To allow experimentation in order to ensure the application of best fit model in a given
circumstance
6) To allow participation of people in the administrative functioning to provide the necessary
authority to the administrative officials so that they can address the challenges arising due to
extraordinary circumstances or emergency situations.

DICEY ON ADMINISTRATIVE LAW:

Dicey supported Rule of Law where everybody in a State everybody shall be subjected to
some common law and no official irrespective of his status and authority shall be kept outside
the purview of Rule of Law. Thus, he rejected the idea of Administrative Law that was akin
to Droit Administrative or that which was being practised in France and other European
countries where there are separate rules for administrative officials as he believed that such
an arrangement would lead to a perpetual risk of excessive application of authority with
people having no window to their grievance redressal.
The reason for this is that while analysing the concept of Administrative Law Dicey was
always thinking of French administrative law/rights system/Le Droit Administrative that
existed under Napoleon's Bonaparte's rule.

Droit Administrative practised the system of:

a) One rule for regulating the behaviour of individuals of society and one rule for regulating
the members of State and administration.
b) One court for members and individuals of the society and their private aspects and another
court for members of State and administration which is the administrative Court/Tribunals
and the apex of this court will be the Council D'Etat (very small division of the country in to
administrative divisions that are smaller than even counties). These are distinct and not
overlapping neither are superior or inferior to each other. They are equals. In case they ever
overlap then the final decision will be taken by a special court constituted for this purpose.
This was done so that administrative and State officials have more autonomy in dealing with
situations and contingencies that arise in execution of administrative duties and which would
not be easily understood by the normal law and courts.

Thus, Dicey believed that there should not be such a separation where there is one law that
governs the administrative and political officials (Administrative Law) and one that governs
society and its people (civil and criminal law) and advocated the rule of law as prevalent in
UK where everybody was equal in the eyes of law and only one common law governed each
and every individual. But he was heavily criticised for this later as he did not take into
account that even the Crown in UK was immune from civil and criminal proceedings, thus,
there was no rule of law or equality here. Also, he is criticised for not taking into account the
future issues that would arrive in administration due to modernisation and complexity like
delegated legislation, etc. Delegated legislation was very much a part of UK administrative
setup as well as the system of administrative adjudication through tribunals that was contrary
to Dicey's rule of law stating only one law making body which is the legislature and it being
applied everywhere universally and interpreted by the judicial courts as and when required
for each and every one. So, therefore UK was practising administrative law already.
Marx also criticised Dicey's rule of law concept by saying that it promotes inequality instead
of equality because if you treat underprivileged and poor equally with rich then there is going
to be a huge disparity that will only expand with time.
Modern day concept of rule of law has been given a very broad meaning by providing
opportunities to unequal people in order to equal themselves with the others like reservation,
etc. Law is created by the legislature or other legal institutions and is not to differentiate but
enable unequal to become equals and the last word on the law would be that of the
independent judiciary.

ADMINISTRATIVE LAW AND RULE OF LAW ARE COMPLEMENTARY:

a) The modern concept of rule of law will be frustrated if not supported by a sound
administration, and only a separate administrative law can provide that sound administration.
b) Administration cannot function in a vacuum; it needs a sound administrative law for itself
to work properly. And all this together only will lead to the rule of law.
c) Thus, rule of law and administrative law are both complementary and are inter dependant
to make each other work.

Rolls

Nash

LSA vs UOI transgender

 UNIT-II
Constitutions could be rigid like that of America or flexible like that of the UK based on
Amenability. India’s Constitution is a synthesis of both, adapting best features from
prominent constitution while engraved them upon ideals that were formed during
nationalistic freedom struggle.
The Constitution of India is called a living document because of it embodies a unique
synthesis of flexibility and rigidity. The fact that the Constitution can be amended according
to the needs of the time makes it a dynamic document.

Constitution: A Living Document

1) Amendment of the Constitution: Constitution must be able to address contemporary

challenges. The state should be able to amend the Constitution from time to time. The
Constitution of India provides for its amendment under Article 368-
A) Special majority of the Parliament: Some provisions of the Constitution can only be
amended by the Special Majority of the Parliament, i.e., two-third of the members of each
House present and voting and a majority (that is, more than 50 percent) of the total
membership of the House. The provisions which can be amended this way include
Fundamental Rights, Directive Principles of State policy and all the provisions not included
in any other category.
B) Special Majority of the Parliament and ratification by half the states (by simple majority):
Various provisions are included in this category such as Election of the President, 7th
Schedule and so on.
C) Simple Majority of the Parliament: This category is outside the scope of Article 368. It
includes provisions such as establishment or admission of new states, abolition of Legislative
Council of the states and so on.

2) Rigidity of the Constitution: Basic Structure of the Constitution like Parliamentary system,
Judicial Independence, Fundamental Rights cannot be amended. The Constitution makers
made sure that the essential nature of the Constitution could not be altered. It thrives to
safeguard the rights and liberties of the citizens. It imposes restrictions on the extent of power
of the state. These safeguards can only be amended by a special majority of the Parliament.
Being lengthiest written, it has detailed polity and administrative principles, which need to be
followed by the legislature, judiciary, and executive.
3) Role of Judiciary: Judiciary has played an important role in not only saving the essence of
the Constitution but also in its evolution.
A) Basic structure Doctrine: Propounded in the famous Keshavnanda Bharati Case, 1973 it
restricts the Parliament from altering the essential features of the Constitution or what the
Supreme Court termed as the Basic Structure. Basic structure includes various Constitutional
ideals such as secularism, rule of law, federalism etc.
B) Transformative nature of the Constitution: The courts, at various point of time, have
brought transformative changes through a broad reading of our Constitution. Courts have
regularly included various rights under the existing Fundamental Rights to suit the changing
times. For example, Supreme Court in its landmark judgment in Justice Puttaswamy Case
recognised Right to Privacy as a part of Fundamental Rights under Article 21.

4) Flexibility in Indian Constitution- Most parts of the Indian Constitution can be amended
without concurrence of states or just by a simple majority in Parliament under article 368, to
be able to reflect on changing society like considering the right to privacy or right to choose
one’s life partner as a fundamental right under the right to life (Article 21).
It allows for differing interpretations as per changed socio-economic circumstances like
ensuring that women are not discriminated against while practicing their right to worship, as
observed in the Sabarimala case.
It allows for the evolution of legal and constitutional measures like the evolution of creamy
layer in the reservation system.

Conclusion
Thus, such a balance makes Indian Constitution a living document that responds to changing
time along with making it durable to protect the basic tenet of democracy, ideals on which the
country was formed like those enshrined in the Preamble. Therefore, the Constitution of India
is not a frozen or static document but a living one. It keeps evolving not only to suit the needs
of the society but also to bring transformation.
 Organic Constitution
I very much think that Indian Constitution is an organic document. There are several
observations that can help me buttress my assertion:
 The Constitution was created after studying almost all major constitutions of the time
(around 1947), taking the best features and then retrofitting them keeping in mind Indian
idiosyncrasies. Dr. Ambedkar accepted the same in the Constituent Assembly without any
hesitation.
 The Constitution tried to give as much power to an ordinary citizen as it could but
because we were still a nascent republic, it didn’t want to overburden the government so
much so that it shatters under the load. Hence, a majority of essential welfare measures
were kept non-justiciable under Directive Principles, and not Fundamental Rights for
which the government could be sued. As time went by and India grew stronger and
capable enough, many of the aspirational Directive Principles are Fundamental Rights
today. For e. g. Right to Education.
 Issues like official language, vulnerable sections’ welfare, etc. were dealt with but not
under any rigid framework that future generations don’t get enough leeway to make
suitable changes. The benefits are seen today that even though we have minor squabbles
over these now and then, no one can blame the Constitution for leaving us with any sore
point.
 The biggest example of the organic character of our constitution is the Supreme Court and
its functioning over the years. The evolution of Basic Structure doctrine and the freedom
and power given to the SC by the constitution ensures that it evolves along with the
country but still carries with it the treasured ideals of our founding fathers(&mothers).
An organic law is a law, or system of laws, that form the foundation of a government,
corporation or any other organization's body of rules.

Constitution as Fundamental Law (INCOMPLETE)

A constitution is a body of basic laws and principles that describes the general organization
and operation of the state and contains fundamental principles and norms that underlie and
guide all government action. Given the fundamental nature of a constitution and its role in
laying a groundwork to shape and support the state, a constitution is usually expected to be
long-standing and somewhat difficult to change or undo. A constitution is simultaneously a
legal, political, and social instrument. Legally, it enshrines human rights and creates a
predictable legal landscape. As a supreme or higher law, its provisions provide a framework
under which all regulations, legislation, institutions, and procedures operate. It articulates the
rights of citizens that institutions, procedures or legislation must not infringe, and which the
state must strive to ensure. Politically, it establishes, distributes and limits governmental
power and provides mechanisms for deliberating and deciding on public policy. Socially, it
may reflect a shared identity or civic vision of the state, expressing commonly-held values or
foundational principles.
 UNIT-III
Constitution and Constitutionalism
What is Constitution
A constitution is the fundamental set of rules and principles that specifies how a country
should be governed, what rights citizens possess and how power is distributed. It forms the
primary organizing principles of a political state. In some countries, it’s a specific document
(for example, in the US). However, in some other countries like the UK, a constitution is a
collection of documents, statues as well as traditional practices that are typically accepted as
governing political matters. Almost all the countries or states in the world have a constitution,
but not every government conducts itself in a manner consistent with the constitution.
If we look at the content of a constitution, it essentially contains rules and principles
regarding the following areas:
Guidelines and rules for the conduction of elections – It stipulates when and how to hold
elections, who can compete for an election, descriptions of the electoral system, and
provisions for the oversight of elections.
Main branches of the government and their relationship – It describes the branches of the
government; typically, the executive, the legislature and the judiciary are the three main
pillars of a democratic political system. The constitution also sets apart the powers each
branch holds and how to elect and remove individuals who control them (chief executive).
In addition to the above, a constitution also addresses and describes many issues like the
rights of citizens, amendments to the constitution, the overall type of government (for
example, the American constitution indicates that it will be both democratic and federal),
values and principles of the nation, etc. The elements or components of a constitution may
also vary from country to country.
What is Constitutionalism
Constitutionalism is a political philosophy or doctrine based on the concept that the
government’s authority is determined by the constitution. It holds the concept that the state is
not free to do anything it wants. Moreover, this provides legitimacy to a democratic
government. In fact, constitutionalism is far more important than having a written
constitution. As we mentioned above, although almost all countries have constitutions, this
does not mean that they conduct themselves in a manner consistent with the constitution.

Difference Between Constitution and Constitutionalism

1) Definition- A constitution is the fundamental set of rules and principles that specifies how
a country should be governed, what rights citizens possess and how power is distributed
while constitutionalism is a political philosophy or doctrine based on the concept that the
government’s authority is determined by the constitution.
2) Nature- A constitution is a system of basic principles describing the governance of a nation
or state while constitutionalism basically refers to adherence to a constitutional system of
government.
3) Conclusion- A constitution is a system of basic principles describing the governance of a
nation or state while constitutionalism basically refers to adherence to a constitutional system
of government. Therefore, this is the main difference between constitution and
constitutionalism. Furthermore, constitutionalism is more important than having a written
constitution.

Constitution Constitutionalism

The concept/ theory/ ideology behind

A document that limits the powers of the state.
limiting the powers of the state.

Soul/ philosophy of the constitution-

Written document.
unwritten.

Deals with the structure of the government, Deals with limiting the powers of the state
political processes, and rights of the citizen. and protecting individual rights.

Set rules and standards to distribute benefits Application of the laws in achieving those
 and burdens in a society. goals.

Not necessarily related to liberal democracy. The underlying basis/ principle of liberal
For instance, China has a constitution. democracy.

Can be dead when a rigid constitution fails to

meet the changing nature and aspirations of A living idea.
society.

Constitutionalism
Negative constitutionalism- It is to be noted that the traditional idea of Constitutionalism (as
stated above) is a Negative notion of Constitutionalism. In law, a negative understanding of
an idea means when it prevents an entity from doing a certain act.

The traditional understanding of Constitutionalism fails to explain the positive role that the
States play. The common understanding of Constitutionalism is negative in nature because it
considers Constitutionalism as only restricting and limiting the power of the state. From the
prism of negative Constitutionalism, a State is a danger that needs to be constrained. The role
of law is to limit the dangerous capacities of the executive and legislative branches. For
instance, the purpose of Separation of power is to protect the liberty of citizens, by restricting
the arbitrary action of the state.
Negative Constitutionalism requiring a constitutional structure which prevents the State
action is not always desirable. This understanding of Constitutionalism makes it harder for
the state to provide health-care and poverty alleviation schemes, which requires government
intervention. Thus, it is not desirable especially in India which is a welfare state and which
aspires to social and economic justice as well along with political justice. It is because of this
that jurists criticise negative Constitutionalism as being anti-democratic. For Waldren, this
understanding of Constitutionalism is fundamentally flawed. For him, this understanding of
Constitutionalism is against the notion of Egalitarianism which for Waldron is at the core of a
Democracy.
Positive constitutionalism- Positive Constitutionalism challenges the understanding of
seeing Constitutionalism entirely in terms of limits upon the State. The positive aspect of
Constitutionalism requires the State to be seen in the light of a “Welfare State”. The positive
version of Constitutionalism requires the creation of effective and competent state institutions
to ensure the well-being of its citizens.
According to M.P. Singh if a Constitution ignores accommodation and respect for diversity
and plurality in a society then it fails to meet the requirement of constitutionalism. Several
older constitutions that have ignored this aspect of constitutionalism have introduced it either
through judicial interpretations, amendments, appropriate legislation and constitutional
application.

Need for constitutionalism

The requirement of Constitutionalism as a limitation on the power of the state has been
explained by Prof. B. O. Nwabueze in his book “Constitutionalism in the Emergent States,
1973. According to him “ the last 30 years (starting from 1973) has demonstrated that the
greatest danger to constitutional government in emergent states arises from the human factor
in politics”, specifically “from the capacity of politicians to distort and vitiate whatever
governmental forms may be devised”. According to him, “a lot depends upon the actual
behaviour of these individuals and upon their willingness to observe the rules. He says that
“the successful working of a constitution depends upon the ’democratic 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”.
In S.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 constitutionalism.
In New India Assurance Company Ltd. v. Nusli Neville Wadia (2007), the Court said that
“For proper interpretation of Constitutional provisions not only the basic principles of natural
justice have to be borne in mind, but also principles of constitutionalism involved therein.”

A constitution is no guarantee for constitutionalism- A written Constitution is no

guarantee for Constitutionalism. Even Nazi Germany had a constitution but that does not
mean that it adhered to the philosophy of Constitutionalism be it a negative or positive aspect
of it.
As the Supreme Court said in S.R. Chaudhuri v. State of Punjab (2001) “the mere existence
of a constitution, by itself, does not ensure constitutionalism. What is important is the
political traditions of the people and its spirit and determination to work out its constitutional
salvation through the chosen system of its political organisation.”
Unless primacy to democratic policies and individual rights is not given Constitutionalism
cannot survive. Subtle assaults to individual rights especially freedom of Speech and
Expression and privacy, such as sedition laws, surveillance laws, undermine
Constitutionalism.
Agin in R.C. Poudyal v. Union of India (1994) court said that, “Mere existence of a
Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the
political maturity and traditions of people that give meaning to a Constitution which
otherwise would merely embody the political hopes and ideals”.
For constitutionalism, a constitution needs to have some qualities which would either restrain
the government from acting against its citizens or compel it to act for securing a dignified life
to each one of them

Essential features of Constitutionalism

(1) Written constitution

Indian Constitution being written, codified and regarded as supreme law of the land, the
Indian State is thus controlled and restricted. Restricted in the sense that it cannot go beyond
the limits and mandate of the Indian Constitution. The mandate of the state cannot go beyond
the Directive Principles of State Policy, enshrined in Part IV of the Indian Constitution. Being
a written Constitution, it firstly provides for a limited government, which is the core of
Constitutionalism. The sovereign powers are divided among 3 organs of the government.
Powers of each organ are defined by the constitution and no organ or its instrumentalities can
transgress its limits. Further, a written Constitution provides for fundamental law of the land
and thus the legislature is bound by the Constitutional principles. The legislature cannot make
a law which violates the Constitution. Thus, the power of the Constitution is restricted.
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 spirit of constitutionalism where every action
taken by them is governed by and is in strict conformity with the basic tenets of the
Constitution”.
(2) Separation of power
Separation of powers means that the powers of the state are divided among the three principal
organs of the government, which are “the Executive”, “the Legislature”, and “the Judiciary”.
Each of the organs is restricted to transgress its limits and this system ensures a check on the
power of the other, thus restraining them from acting arbitrarily and unreasonably, without
due regard to due process.
In the State (NCT of Delhi) v. Union of India (2018), Chief Justice Mishra observed that
“The essence of constitutionalism is the control of power by its distribution among several
state organs or offices in such a way that they are each subjected to reciprocal controls and
forced to cooperate in formulating the will of the state.
(3) Fundamental rights
Fundamental rights are the most basic bulwark against the arbitrary exercise of the power of
the state. Fundamental Rights act as restraints on the states, directing states what not to do.
They serve as negative covenants for the state.

In IR Coelho v. State of Tamil Nadu and Ors (2007) court observed that the principle of
constitutionalism is now a legal principle which requires control over the exercise of
Governmental power to ensure that it does not destroy the democratic principles and these
democratic principles include protection of Fundamental Rights. The principle of
constitutionalism is based on the principle of legality which requires the Courts to interpret
the legislations on the presumption that the Parliament would not intend to legislate contrary
to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for
laws protecting fundamental rights to be impliedly repealed by future statutes.
For instance, no law can be made by the state which treats two people who are situated in
equal circumstance unequally since it will amount to a violation of Article 14 of the Indian
Constitution. Similarly, Freedom of Speech and expression under Article 19(1)(a) can be
restricted only on the ground mentioned in Article 19(2) only i.e. It can be restricted only if
the sovereignty and integrity of India, the security of the State, friendly relations with foreign
states, or public order, decency or morality is threatened or if the speech is in relation to
contempt of court, defamation or incitement to an offence. The freedom of speech cannot be
restricted by the state on any other grounds. Thus, these restrictions on speech act as limits on
the power of the state in the sense that it delineates the extent to which the state can curb
freedom of speech.
(4) Independent Judiciary
 The independence of the judiciary is the foundation of any liberal democracy and the
essence of a free society.
 The judiciary is the upholder of the rule of law, and removing its independence
jeopardises the entire rule of law.
 Article 50 of the Constitution also provides for the separation of the judiciary and the
executive.
(5) Judicial review- https://www.drishtiias.com/daily-updates/daily-news-analysis/judicial-
review-1
(Left Out ones that are not mentioned in syllabus can be read through-
https://prepp.in/news/e-492-constitutionalism-indian-polity-notes)

UNIT- IV