Constitutionalism and Limited Government in India

Constitutionalism is the idea that governmental power must be limited, decentralised and exercised strictly according to law rather than at the discretion of those who hold office. It is distinct from merely having a "constitution" — a country can possess a written constitution and still lack constitutionalism if power is concentrated and unchecked, as happens under a dictatorship. In India, constitutionalism operates through devices such as the separation of powers, an independent judiciary, fundamental rights, and judicially enforced limits on the amending power itself.

Constitution vs Constitutionalism

A constitution is simply the document or set of rules by which a state is organised. Constitutionalism is a normative commitment that goes further: it requires that the constitution itself be permeated with restraints on power, so that authority is decentralised rather than concentrated at one point. Where a constitution merely describes how a government is structured without limiting what it may do, constitutionalism additionally demands that rulers remain subject to law. Political scientists have described this contrast in similar terms — as a system of effective restraints on governmental action that keeps government responsible; as government "according to rule" rather than by the unrestrained will of rulers; and as the antithesis of arbitrary, despotic or totalitarian rule. Constitutional scholarship also distinguishes a procedural constitution, which sets out legal limits on government power to protect democratic processes and rights, from a prescriptive constitution, which additionally commits the state to pursuing particular societal goals — a distinction useful for locating where a given constitution's restraints on power actually lie.

The Essential Elements

Legal scholarship associated with Louis Henkin identifies a recurring set of features that mark out genuine constitutionalism, beyond the mere existence of a constitutional text:

India's constitutional design reflects most of these elements directly — an independent judiciary, justiciable fundamental rights, civilian control over the armed forces, and a structure of checks and balances among the three organs of government.

The Basic Structure Doctrine: Limiting the Amending Power Itself

The clearest institutional expression of limited government in India is the judicially evolved limit on Parliament's own power to amend the Constitution. Article 368 confers on Parliament the power of constitutional amendment, but in Kesavananda Bharati v. State of Kerala (1973) the Supreme Court held that this constituent power cannot be used to alter the "basic structure" of the Constitution. The Court reasoned that if the amending power were unlimited, Parliament could in principle erase the very restraints that make the polity constitutional in the first place — precisely the outcome constitutionalism is meant to prevent.

The doctrine has since been applied and reaffirmed in later cases. In Minerva Mills v. Union of India (1980), the Supreme Court struck down provisions that sought to place constitutional amendments beyond judicial review, holding that limited amending power is itself part of the basic structure. In Kihoto Hollohan v. Zachillhu (1993) and S.R. Bommai v. Union of India (1994) — the latter decided by a nine-judge bench — the Court continued to invoke the basic structure to test the validity of constitutional changes and executive action against core constitutional principles.

Judicial Review as the Institutional Safeguard

Commentary on the working of the Constitution has described judicial review by the High Courts and the Supreme Court as the most significant post-Constitution achievement securing "limited Government," or what is described in American constitutional writing as "the Government of laws, not of men." Through writ jurisdiction, courts have protected individuals against the executive, against oppressive legislation, and, on occasion, against an over-assertive legislature itself. Judicial review is accordingly described as "the flower of Indian constitutionalism" — the visible institutional outcome of the deeper commitment to limited government.

This same commentary also cautions that judicial review carries its own risks: the evolution of novel doctrines by the courts — including basic structure, prospective overruling, or unenumerated fundamental rights — needs to remain tethered to constitutional text, since expansive judicial law-making, however well-intentioned, can itself sit uneasily with a system built on defined and limited powers for every organ of government, including the judiciary.

Emergency Provisions and the Limits on Limited Government

The constitutional commitment to limited government has also been tested by its own emergency provisions. Articles 358 and 359 permit the suspension of certain fundamental rights during a proclaimed emergency; commentary on India's constitutional history notes that fundamental rights under Articles 14, 19, 21 and 22 remained suspended for a cumulative period of roughly fifteen years across such emergencies. This experience is cited as evidence that when emergency powers overshadow the ordinary working of the Constitution, the balance between "normal" and "emergency" governance is disturbed. In response, the 44th Amendment Act, 1978, gave Parliament greater control over the invocation of emergency powers under Articles 352 and 356, narrowing the scope for their misuse and restoring some of the balance that constitutionalism requires.

UPSC Relevance

Prelims

• Constitutionalism is distinguished from a mere "constitution"; it specifically connotes limited government.
• The basic structure doctrine originates from Kesavananda Bharati v. State of Kerala (1973).
• Article 368 grants Parliament's amending power, which is itself limited by the basic structure doctrine.
• The 44th Amendment Act, 1978, restricted the misuse of emergency powers under Articles 352 and 356.

Mains

• Discuss constitutionalism as limited government and examine how the basic structure doctrine operationalises this idea in India.
• Evaluate the role of judicial review in sustaining constitutional government, along with the risks of judicial overreach.
• Analyse how the emergency provisions and their subsequent amendment reflect tensions within India's commitment to limited government.

FAQ

Q1. What is constitutionalism in simple terms? Constitutionalism means that government power is limited by law and decentralised, rather than being exercised arbitrarily — a country can have a constitution without having constitutionalism.

Q2. What is the basic structure doctrine? It is the judicial principle, laid down in Kesavananda Bharati v. State of Kerala (1973), that Parliament's power to amend the Constitution under Article 368 cannot be used to alter the Constitution's basic structure.

Q3. How does judicial review support limited government in India? Courts use writ jurisdiction to check executive action and legislation against the Constitution, protecting individual rights and enforcing limits on governmental power.

Q4. Which amendment addressed misuse of emergency powers? The 44th Amendment Act, 1978, gave Parliament greater control over the exercise of emergency powers under Articles 352 and 356.

Q5. What are the essential elements of constitutionalism? Popular sovereignty, rule of law, democratic and accountable government, separation of powers, an independent judiciary, civilian control of the military, police governed by law, and respect for individual rights.

Quick Revision

• Constitutionalism = limited government + rule of law, not merely having a constitution.
• Kesavananda Bharati (1973) — basic structure doctrine; limits Article 368 amending power.
• Minerva Mills (1980) — limited amending power itself held part of basic structure.
• Kihoto Hollohan (1993) and S.R. Bommai (1994) — basic structure applied to test amendments/executive action.
• Articles 358–359 — emergency suspension of Fundamental Rights; checked by the 44th Amendment (1978).
• Judicial review described as "the flower of Indian constitutionalism."

Sources

• The Constitution of India — Ministry of Law and Justice, legislative.gov.in
• Kesavananda Bharati v. State of Kerala (1973) — Supreme Court of India
• Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 — Supreme Court of India
• S.R. Bommai v. Union of India, AIR 1994 SC 1918 — Supreme Court of India

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.

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