Constitutional Government and Constitutionalism
Constitutionalism means limited government under law. The exam tests the difference between possessing a constitution and practising constitutionalism, Dicey’s rule of law, separation of powers, and India’s basic structure doctrine.
Core rules and concepts
- A constitution is the framework of government; constitutionalism adds limits, rule of law and rights protection.
- Dicey’s rule of law: no arbitrary punishment; equality before the law; rights flow from ordinary courts. Critics point to discretionary powers and administrative law.
- Separation of powers (Montesquieu) separates legislature, executive and judiciary. India practises a functional separation with checks and balances, not a rigid American-style separation.
- The Indian Constitution is written, the lengthiest in the world, partly rigid and partly flexible (Article 368), federal with a unitary bias, parliamentary and secular.
- Basic structure: Kesavananda Bharati (1973) held that Parliament cannot amend the Constitution’s basic features. Minerva Mills (1980) reaffirmed judicial review. Articles 13, 32 and 226 support review.
Worked example
Parliament amends the Constitution to bar courts from reviewing constitutional amendments. Is it valid? Reasoning: Article 368 gives wide amending power but not unlimited power. Judicial review is a basic feature identified in Kesavananda and protected in Minerva Mills. An amendment that ousts review destroys a basic feature, so it is void. The answer must cite Article 368, the basic structure doctrine and the case law.
Traps
- Equating “having a constitution” with constitutionalism.
- Treating Article 368 as unlimited.
- Claiming the Preamble is directly enforceable.
- Treating the basic structure list as closed; it is illustrative.
- Confusing rigid and flexible amendment procedures.
Key points
- Constitutionalism = limited government + rule of law + rights.
- Dicey’s three propositions define the classic rule of law.
- India has functional, not rigid, separation of powers.
- Kesavananda Bharati (1973) created the basic structure doctrine.
- Article 368 is wide but subject to basic structure.