Q.) What is the difference between the constitution and constitutionalism? Discuss the doctrine of basic structure as enunciated by the Supreme Court of India.

Ans– Constitution is a legal document, a set of rules and norms which aims to create, structure, and define the limits of powers of government and authority. Today we discuss the difference between the constitution and constitutionalism.

From the constitution, the government draws the aspiration to make the loss through which the country can be ruled.

Functions of the constitution– The constitution defines the political structure of the country. It expresses several functions.

  1. Expresses ideology– communicates philosophy of a nation and processes the belief system of the country.
  2. Express the basic laws– the constitution institutes several basic laws which may be fundamental. Ex- right to speech, right to life, speak any language, manifest any culture, etc. If the basic laws are to be changed there is a need for an extraordinary process for the amendments.
  3. Express the organization of government– the best tuition tells the framework of government. divides the power between legislative, executive, and Judiciary with check and balance.
  4. It opens up about the type of government– it tells, whether the Government will be Federal or unitary or quasi-federal, etc.
  5. It provides for the provision for the amendments.

Constitution and Constitutionalism–

The constitution is a mere document with aspirations. It depends on citizens, society, and the government to materialize it. the constitution may be written, not written, followed, or not followed.

Constitutionalism is defined as putting limitations on the functioning power of the government. It can be negative constitutionalism when it put checks and limits on the government. it also can be positive constitutionalism when it motivates the government to take measures and frame laws for the Welfare of the people and state.

Basic principles on which the constitution is based–

  1. Separation of power.
  2. Responsible and accountable government.
  3. Independent judiciary.
  4. Individual rights.
  5. Popular sovereignty.
  6. Rule of law.
  7. Civilian control of the military.
  8. Accountable police. need of constitutionalism–
  9. Rameshwar v/s Union of India– Court declared that constitutionalism abhors absolution. Power corrupts and absolutism leads to dictatorship and despotism. All are based upon rule of law.
  10. It protects the fundamental rights– In Coelho v/s State of Tamil Nadu– Court said that constitutionalism put limits to the exercise of government power which protects the basic principle of the democracy on which it is based on the fundamental rights- Article 14, 19, and 21 deeply preserved.
  11. Constitutionalism prevents arbitrariness and malafide intentions.

Thus, it ensures the realization of fundamental rights of the individual and preserves the dignity and Unity of society and Nation.

Basic structure– Is a form of constitutionalism.

  1. It is the judicial innovation to put a limit on the amendment power of the Parliament.
  2. Series of occurrences and the conflicts between essential freedoms and Directive Principles of State Policy lead to the improvement of fundamental construction.
  3. In Kesavananda Bharati Case (1973) – Supreme Court upheld the power of Parliament to amend the constitution to preserve its basic features the constitution. which means Parliament can change some provisions but cannot alter them into totality which amounts to framing a new constitution.
  4. Supreme Court is a Guardian of the constitution and from Time to time it is supposed to deliver the base.

Some of the basic features of the constitution are–

  1. The sovereignty of the constitution.
  2. Republic and democracy.
  3. Secular nature.
  4. Separation of power.
  5. Principle of equality.

It is clear at this point that there is a strict rule for saving the essential element of the constitution yet it is its main component and capacity of the legal executive. Judges might altercate upon it at times at the end of the day they concur that it is of most extreme significance to save the essential structure of the constitution.

The democratic and government credits of the constitution additionally add to its significance. Furthermore, losing its quintessence would deliver the constitution as an insufficient archive that is not equipped for shielding the essential ascribes of the world’s biggest democracy.

Whatever is intended by the makers of the Constitution is clearly expressed as vividly put in the provisions of the constitution and has not intended to put implied limitation. Laws are dynamic with the evolution of society. changes are eminent expect which our lifeless and dead. Hence, basic structure implies static. On the contrary, our constitution is organic.

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