Concept of Constitutionalism

Concept of Constitutionalism

135


SATYAPRAKSH SIR

DATE : 16/12/23

Positive constitutionalism

While negative constitutionalism takes about limitation on the state, positive constitutionalism focused on the functions of the state. While the former negative emphasise on the fact that a state power is limited and points towards positive functions of the state. Therefore, it takes about welfare state.

 the roots of positive constitutionalism can be traced back in the works of Aristotlewho emphasise on the necessity of the state in the context of Indian constitution Part three such that fundamental right talks about negative constitutionalism and partfour directive principle of a states takes about the positive constitutionalism

 

Relation between democracy constitution constitutionalism and constitutionalism morality

Abraham Lincoln: Democracy means government of the people, by the people, for the people 

 

However, it cannot be assumed that a democratically elected government will always follow constitutionalism

It is also not guaranteed that presence of constitution shall always result into constitutionalism.For example in Nazi Germany the philosophy of constitutionalism whether negative or positive, was not followed despite the fact that a constitution existed.

Similarly democracy is not an guarantee for constitutionalismWe can give the example of national emergency in India in 1975. Where in a democratically elected government following the provisions of the constitution imposed national emergency under act 352. However, the conduct of the government did not align with the philosophy of constitutionalism.

Existence of democracy is not a prerequisite for constitutionalismWe can give examples from ancient India, where the fundamentals ethics of the king was written in Dhama, Shastraj, which acted as constitution

Even the king was bound to obey these ethics. We can also give examples of the rule under King Ashok where the models of an ideal society was written on rock addicts And Laws of Dhamma acted as constitution. Therefore, we can say that there is no direct relation between democracy, constitution and constitutionalism However, it is true that for a sustainable democracy, constitutionalism is a must.

 

The Supreme Court in RC Pondyal vs Union of India 1994 emphasised on the fact thatjust the existence of the Constitution does not ensure constitutionalism. Constitutionalism comes from political culture and the Democratic tradition of the people it has to be cultivated in another case S R Chowdary versus a state of Punjab 2001The Supreme Court gave similar conclusions

 

We can refer to the opinion of Justice HR Khanna In his bookMaking of India's Constitution Justice Kanna argues that people are the trustees and the constitution of the constitutional values. He defines constitutionalism as a way of life that emerges from the values of the constitution. 

 

Amartyasen counters the western narrative that constitutionalism cannot exist in India, because Indian lacks critical thinking. In his book argumentative Indian argued that the culture of asking question and deliberation has a root in Indian tradition itself He talks about the existence of Sabha’s and deliberation in Buddhist tradition, where the culture of critical thinking was encountered Therefore, he concludes that constitutionalism in India shall be the result of India's civilizational output

 

Gandhi Ambedkar debate on constitutionalism

 

an constitutionalism is considered as one of the major milestone becauseGandhi and Ambedkar V of the tallest under when it comes in the concern of social justice

If Social Justice can be considered as a disease, follow the approach of a doctor (physician) and Gandhi follow the approach of a saint That is basically (Jhad fook?)

Ambedkar is a constitutionalist who trusts states more than the societyHowever, Gandhi is a moral anarchist who believes in appealing to the conscience of the peopleAmbedkar believes in federal governance Model With the strong central and the state governmentWhile Gandhi believes in a horizontal distribution of power based on panchayati raj Ambedkar is particularly against Hindu religion and believes that caste system is so much integrated into HinduismThat conversion to other religions, like Buddhism, is the only solution for the problems of Dalit classes On the other hand, Gandhi supports Verna Ashram and calls depressed classes as harijan. Gandhi believes in Vedic traditions, but Ambedkar suggests to put dynamites on Vedas.However, both Ambedkar and Gandhi acknowledged social discrimination and belief in peaceful methods for social transformation. 


 

What is the meaning of constitutionalism for ambedkar?

According to Ambedkar constitutionalism suggests that social transformation can be Achieved through the provisions of Constitution He not only rejects the Gandhian method of non cooperation, civil disobedience and Satyagraha but he also rejects the Communist method of a revolution at a future date. Ambedkar believes in revolution through the constitution. However, he acknowledges that constitutionalism is not a natural sentiment. It has to be cultivated democracy in India is only a top dressing on Indian soilThe Indian society is essentially undemocratic. Ambedkar Argues that the constitution can provide the organs of the state. However, the working of these organs will depend upon the understanding of constitutionalismHe points out that on 26th January, 1950 India is going to enter into a life of contradictions

 

What is the life of contradiction?

For Ambedkar life of contradiction means in politics We'll have equality, but in social and economic life.We will have inequality. 

Ambedkar suggested that this contradiction is going to be biggest treat for Indian democracyAnd the sooner we get rid of this, better it would be for Indians future. Therefore, he considers social and economic democracy as a prerequisite for political democracyIn his book, the Buddha and his dhamma Ambedkar claims that his concept of constitutionalism and his belief in liberty equality and fraternity is not borrowed from French Revolution. Rather, it emerges from the teachings of Buddha

 

What is the meaning of constitutionalism for gandhi

Unlike Combetaker for Gandhi, constitutionalism can only be narrowly defined if it is limited to following the constitutionGandhi brings morality into constitutionalism. He says that only those laws should be followed, which can be rectified by the soul of individuals. 

Bhikhu Parekh Call Sudhandhi political thought unconventional because it has a Balance of rootednessAnd opennessGandhi used to say that his doors are closed, but windows are open. It means that selective ideas from foreign ideologies can be adopted if It does not go against the culture of India.

 

Evolution of Constitution Assembly

 

Ambedkar:  By independence, we have lost the Excuses of blaming the British for anything going wrongIf hereafter things go wrong, we will have nobody to blame except ourself

 

With the adoption of the Constitution, India became the largest democracy in the world. The Constitution Assembly completed its task in 2 years, 11 month and 18 days

However, the demand for a constitutional assembly existed since the start of 20th century itself

Mahatma Gandhi in 1922 said that Swaraj would not be the gift of the British Parliament, but must come from the visas from the people of IndiaIn an article published in Harizan in 1939

The book titled the only way

Gandhi was argued that a constitutional assembly having members from the Indian committee is the best way to approach the communal problem. 

For Gandhi Swaraj was a broad concept going beyond political independence for him. Swaraj means that each individual is also the Master of his soul

At various Congress seasons like Faijpur Haripura Tripuri, the demand for a constitutional assembly to draw India's constitution without any foreign interference was put forward

 

K C whear, In his book, the constitutional structure of the Commonwealthhas described this desire for home made constitution as the principle of constitutional autochthony

However, India also have leaders like Ambedkar and Muhammad Ali Jinnahwho were exception to this trendAmbedkar told that constitutional assembly was not needed, and the government of India 1935 was sufficient

Indian council at 1909 for the first time Brought Indians into governance at Central and provincial level although on the basis of a limited and communal separated representation.

The Government of India Act 1919 further expandedThis commonly presentation of separate electorate to Sikh Christians Anglo Indians, besides Muslims

The Simon Commission report in 1930 concluded that greater Indian involvement is required in the governance in India

After the Round Table Conference  1930, 1931, 1932, The Government of India Act 1935 was passed in 1934Minnesota Roy demanded for the Constitutional Assembly to draft the Indian Constitution This demand was accepted in the August after when the British proposed setting off of the Constitutional Assembly Were mainly Indians would draft constitution However, this can be done only after the war end.

 

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