DEMISE OF CONSTITUTIONALISM?

In framing a government which is to be administered by men over men, the greatest difficulty lies in this: You must first enable the government to control the governed, and next, oblige it to control itself. The main purpose of the constitution is constitutionalism, the concept of limited powers. Constitutions are a social compact between the state and people. We need to ensure that the exercise of governmental powers should be controlled in order that it is not destructive of the values it was intended to promote. If the last century saw the death of God, currently we are experiencing the death of constitutionalism. The sudden abrogation of Article 370, like the imposition of Emergency in 1975, is nothing short of the sad demise of constitutionalism.

All societies are by nature authoritarian, and governments even more so, particularly if they have massive majorities in Parliament. Today most western constitutions, including that of the US, are only ostensibly about rights and limitations; in fact, they are about power and control. Article 370 was a shell that had long been emptied. The successive Presidential Orders issued under Article 370, in fact, gave special status to the Centre. So, what has been gained by its abrogation is not clear.

Constitutionalism is the anti-thesis of authoritarianism. Having a constitution does not mean that we have constitutionalism as well. Hitler, too, had the Weimar Constitution. Constitutionalism tries to limit the power of constitutional authorities through doctrines such as rule of law which, as opposed to rule by law, ensures equality before law, equal protection of laws to all and non-arbitrary exercise of power. To ensure that too much power is not concentrated in one hand or organ, we have the doctrine of separation of powers between the three organs of state — the legislature, executive and judiciary. Distribution of powers ensures that the Centre does not become too powerful and power is shared with the states. Under asymmetric federalism, special status is given to some states due to peculiar historical and cultural factors to limit the power of the Centre in those states. All fundamental rights are negative restrictions on the power of the state. As the state enjoys monopoly of power, the greatest danger to fundamental rights comes from the state. Kashmiris, rather than getting personal liberties and freedom under Article 21 and freedom of speech and movement under Article 19, are experiencing detention and censorship.

The opening words of our Constitution are “we the people”, not “we the government of India”. As the people’s representatives too may go against the Constitution, we have given the power of judicial review to constitutional courts to strike down a law if it violates the constitution and a constitutional amendment if it impinges on its “basic structure”.