Consentia on Business Laws and Constitutional Laws

CONSTITUTIONALISM VIS-A-VIS SOVEREIGNTY AND DEMOCRACY

Constitutionalism is a concept in political theory that explains that a government does not derive its power from itself, but gains its power as the result of there being a set of written laws that give the governing body certain powers. This concept is in sharp opposition to monarchies, theocracies, and dictatorships. Constitutionalism therefore naturally prescribes a system of government in which the government’s powers are limited. Government officials, whether elected or not, cannot act against their own constitutions if they see fit. Constitutional law is the highest body of law in the land, which all citizens, including the government, are subjected to. Several nations around the world have adopted forms of constitutionalism in their governments.

Sovereignty in government is that public authority which directs or orders what is to be done by each member associated in relation to the end of the association. It is the supreme power by which any citizen is governed and is the person or body of persons in the state to whom there is politically no superior. The necessary existence of the state and that right and power which necessarily follow is “sovereignty.” By “sovereignty” in its largest sense is meant supreme, absolute, uncontrollable power, the absolute right to govern. The word which by itself comes nearest to being the definition of “sovereignty” is will or volition as applied to political affairs.

Democracy is a means for the people to choose their leaders and to hold their leaders accountable for their policies and their conduct in office.

The people decide who will represent them in parliament, and who will head the government at the national and local levels.  They do so by choosing between competing parties in regular, free and fair elections. Government is based on the consent of the governed. In a democracy, the people are sovereign—they are the highest form of political authority. Power flows from the people to the leaders of government, who hold power only temporarily.

In this paper I seek to inquire if the workings of these three concepts of constitutionalism, sovereignty and democracy are strategically related and determine if India has been able to harmonize them in its governance.

 

 

 

The concept of Constitutionalism:

 

Constitutionalism is the idea, often associated with the political theories of John Locke and the founders of the American republic, that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.

In the minimal sense of the world, a constitution consists of a set of norms creating, structuring, and possibly defining the limits of, government power. In this way, all states have constitutions and all states are constitutional states. Anything recognizable as a state must have limits in the three basic forms of government power: legislative power, executive power and judicial power. Let’s take the case of an absolute monarch Rex, who has complete authority and limitless power, therefore the constitution of this state might then be said to contain only one rule, which grants unlimited power to Rex.

Unlike in the case of Rex, here we talk of constitutionalism in the sense that not only there are norms creating legislative, executive and judicial powers, but that these norms impose significant limits on those powers. Often these limitations are in the form of civil rights against government, rights to things like free expression, association, equality and due process of law. But constitutional limits come in a variety of forms. They can concern such things as the scope of authority (e.g., in a federal system, provincial or state governments may have authority over health care and education while the federal government’s jurisdiction extends to national defence and transportation); the mechanisms used in exercising the relevant power (e.g., procedural requirements governing the form and manner of legislation); and of course civil rights (e.g., in a Charter or Bill of Rights). In this richer sense of the term, Rex’s society has not embraced constitutionalism because the rules defining his authority impose no constitutional limits.[1]

Constitutionalism is a concept in political theory that explains that a government does not derive its power from itself, but gains its power as the result of there being a set of written laws that give the governing body certain powers. This concept is in sharp opposition to monarchies, theocracies, and dictatorships. Constitutionalism therefore naturally prescribes a system of government in which the government’s powers are limited. Government officials, whether elected or not, cannot act against their own constitutions if they see fit.

When the Constitution of India was adopted on November 26, 1949 by the Constituent Assembly, its members were mindful of the challenges of governance. not be that we had a bad Constitution. What we will have to say is that Man was vile.” The members also recognized that the mere adoption of a good Constitution would not culminate in the values of constitutionalism permeating the civil and political culture in the country, nor could it ensure good governance.

In theory, if the different branches of the government adhere to the basic principle of separation of powers and function within their limits, it is considered a sound system of governance. In practice, however, a number of issues have emerged and challenges occurred. It is in this context that the three branches of the government — the legislature, the executive and the judiciary — need to have a certain degree of trust in, and deference to, the actions of one another in matters within their respective jurisdictions.[2]

In I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors.[3]  Supreme Court was of the view 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 upon which it is based. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making.

In Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr.[4] , the Supreme Court said that -“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.”

 

Concepts of sovereignty and democracy:

Sovereignty in government is that public authority which directs or orders what is to be done by each member associated in relation to the end of the association. It is the supreme power by which any citizen is governed and is the person or body of persons in the state to whom there is politically no superior. The power to do everything in a state without accountability, –to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like.[5]

In 1832 when Austin published his lectures titled ‘Province of Jurisprudence’ then the concept of sovereignty reached to its climax. The theory of sovereignty mainly depends upon his view of the nature of law. Law, according to Austin is a ‘’ command given by a superior to an inferior”. From this definition of law he develops his theory of sovereignty in the following words,

If a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience, from the bulk of a given society, that determinate human superior is sovereign in that society, and that society (including the superior) is a society political and independent.”

Therefore in the present scenario of the world the Austin’s theory is not applicable in democratic countries and in common legal systems. It is applicable in totalitarian state which was prevailing in Germany during Hitler’s regime. At present we can find such state is Taliban where Austin’s theory of sovereignty is applicable. In Myanmar the present military ruler Than Shwe have crushed the democracy and he has housed arrested the Suu-ki who is fighting to re-established the democracy in such a country. Similar condition is in Zimbabwe, Uganda etc. Where there is complete failure of democratic process. So, in today’s world prospective concept of Austin is not widely accepted, it is limited to few sovereign countries.[6]

Democracy is a form of government in which all eligible citizens have an equal say in the decisions that affect their lives. Democracy allows people to participate equally—either directly or through elected representatives—in the proposal, development, and creation of laws. It encompasses social, economic and cultural conditions that enable the free and equal practice of political self-determination. Equality and freedom have both been identified as important characteristics of democracy since ancient times.[7] These principles are reflected in all citizens being equal before the law and having equal access to legislative processes.

India is a Parliamentary democracy. Parliamentary democracy is a representative democracy where government is appointed by representatives as opposed to a ‘presidential rule’ wherein the President is both head of state and the head of government and is elected by the voters. Under a parliamentary democracy, government is exercised by delegation to an executive ministry and subject to ongoing review, checks and balances by the legislative parliament elected by the people. Parliamentary systems have the right to dismiss a Prime Minister at any point in time that they feel he or she is not doing their job to the expectations of the legislature. This is done through a Vote of No Confidence where the legislature decides whether or not to remove the Prime Minister from office by a majority support for his or her dismissal.[8]

Understanding the relationship:

The main objective of my project is to understand the relationship between constitutionalism, sovereignty and democracy. To see if these three concepts are strategically related and how can they be incorporated in India’s political system.

Austin’s theory tells that all laws come from the sovereign may be true theoretically, and laws in our country are a result of the act of the politically superior that is the legislators but the same is not true practically as they are not a reflection of the will of the superior in the real sense. Law emanating only from the sovereign may be fit for a totalitarian regime where the government can use its monopoly of law making and executive powers for the re shaping of laws in disregard of the democratic processes, but in a democratic country like India the same is not possible. The interplay between the public opinion and state action has become very complex these days. Public opinion on vital issue is expressed through the elected representatives in the house, and also through public discussion in press, radio, public lectures .it can thus be concluded that legislative practices in our country provide for opportunities to the public to participate in the legislative activities of those to whom these powers are delegated.

Austin postulates a political superior in a political society who is habitually obeyed by the majority of the population but the issue is that how can one determine the ‘highest authority’ in a democratic country like India. Who is the highest authority, is it the masses who chose the government, is the legislators who finally make laws, is it the judiciary that has the power to strike down laws made by the parliament, is it the executive as laws that are enforced are selected by administrators today, or is it the constitution according to which all others are expected to act or is it again the masse by whom the constitution has been formed? Who do we call supreme?

Similarly Austin’s concept of unlimited and indivisible sovereignty is quite inappropriate in the Indian set up or any democracy. The sovereign does not have the power to command anything that it desires. It is as much bound by rules and regulation embodied in the constitution and other laws as any common man. Constitutionalism means limiting powers of the legislature, executive and judiciary therefore Austin’s concept of sovereignty cannot be incorporated in India’s political system.

Having talked about the relationship between constitutionalism and sovereignty, I would now like to establish the link between constitutionalism and democracy as observed in the Indian scenario. As most of you think we live a in a democracy, what most people forget is we have a constitution which sets limits on what our representatives are allowed to do and not to do. The government has not rights only powers. And limited powers unless unchecked. India is a democratic country with a written Constitution. Rule of Law is the basis for governance of the country and all the administrative structures are expected to follow it in both letter and spirit. It is expected that Constitutionalism is a natural corollary to governance in India. But the experience with the process of governance in India in the last six decades is a mixed one. On the one hand, we have excellent administrative structures put in place to oversee even the minutest of details related to welfare maximization but crucially on the other it has only resulted in excessive bureaucratization and eventual alienation of the rulers from the ruled. Murray Rothberg, who coined the term “anarcho- capitalism,” attacked constitutionalism, arguing that constitutions are incapable of restraining governments and do not protect the rights of citizens from their governments. No constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government.

Conclusion:

In reality, no constitutionalism exists in practice. On one hand, our judiciary elicits such intellectual responses that “Faith in the judiciary is of prime importance. Ours is a free nation. Among such people respect for law and belief in its constitutional interpretation by courts require an extraordinary degree of tolerance and cooperation for the value of democracy and survival of constitutionalism” said in Indra Sawhney and Ors. vs. Union of India and Ors.[9] It’s such a tragedy to emanate the ratio of conviction in blurred cases of many high officials in India because no matter what crime they commit, they get away with it.

Democracy is normatively incomplete without constitutionalism as it cannot function as a guide to good government on its own terms; it is constitutionalism that provides guidance to democracy in terms of individual rights, limited welfare rights, checks and balances, etc. In order to complete democracy in this way, constitutionalism has to take recourse to non-democratic sources. Constitutionalism also cannot exist in isolation from democracy. The author contends that it is necessary to go beyond viewing democracy merely as the vesting of fundamental authority in institutions of elected representatives. Constitution can be more meaningfully understood by adopting a more complex concept of democracy—one that is able to distinguish between popular sovereign power in the hands of the people themselves, and in those of their agents in government.

[1] Waluchow, Wil, “Constitutionalism”, The Stanford Encyclopedia of Philosophy (Winter 2012 Edition), Edward N. Zalta (ed.),

[2] C. Raj Kumar(2007). ‘Constitutionalism and Judicial Governance’, The Hindu, Oct.

[3] AIR 1999 SC 3197

[4] (2006) 2 SCC 1

[5] Black’s Law Dictionary

[6] Abhinav Kumar. “Austin’s concept of sovereignty and its relevance in Indian Legal System and in Indian Judiciary”, The Legal Junction. 24 May 2011

[7] Aristotle, Politics.1317b (Book 6, Part II)

[8] O’Neil, Patrick H. Essentials of Comparative Politics. 3rd ed. New York: W. W. Norton &, 2010. Print

[9] 1992 Supp (3 )SCC 212

Advertisements

1 thought on “CONSTITUTIONALISM VIS-A-VIS SOVEREIGNTY AND DEMOCRACY”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s