While delivering a lecture, he also emphasized on the need to differentiate between having a Constitution and practising constitutionalism.
What is Constitutionalism?
- It is an idea that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.
- Judiciary’s played key role in evolving modern constitutionalism in India through progressive interpretation of constitution such as articulation of rights of LGBT community in Navtej Singh Johar & Ors. vs. UoI Case (2018).
Constitutionalism in India
- Supremacy of the Constitution: Indian Constitution is the supreme law of the land, and all laws and policies must conform to it. (Article 13)
- Fundamental Rights and Directive Principles: Protect individual liberties and guide the governance to promote social justice.
- Basic Structure doctrine [Kesavananda Bharati Case (1973)]: Ensures that the fundamental principles of the Constitution cannot be altered even through amendments.
Emerging trends in Constitutionalism
- ‘Internationalization’ of Constitutional Laws: Transfer of constitutional functions from national to international level. e.g., Market access rights and level-playing fields through Most Favored Nation clauses.
- ‘Constitutionalization’ of International Laws: Increasing importance of non-state actors such as international NGOs, MNCs, etc., are challenging the role of state as the exclusive subject of international law.
