Constitutionalism

Limits that bite. A prohibition with no consequence is not a limit. The American Bill of Rights bites because a court will set a statute aside; the Indian Part III bites because article 32 makes the remedy itself a fundamental right.

Division of power. Between organs and, in a federation, between levels, so that no single body can do everything.

An independent adjudicator. Somebody outside the political branches must be able to say authoritatively that a limit has been crossed. Which is why Module III's topic on the judiciary is not a separate subject but the same subject seen from the other end.

A lawful route to change. Constitutionalism does not mean that a constitution can never change. It means that change follows a known procedure rather than a seizure.

Accountability. Elections, a free press, a legislature that can question the executive. These are not in every constitutional text and are indispensable in practice.

A worked example

Suppose the government of a State wishes to detain critics of its policy for six months without charge, and passes an Act to that effect. Follow the Act through four of MU's seven systems and constitutionalism becomes concrete.

India. The Act meets article 22, which permits preventive detention but conditions it: the detenu must be told the grounds, an Advisory Board of persons qualified to be High Court judges must report within three months, and the law must fix the maximum period. The Act also meets article 21, and after Maneka Gandhi v. Union of India, AIR 1978 SC 597, the procedure it lays down must be fair, just and reasonable rather than merely enacted. If it fails either test a court will strike it down under article 13.

The United States. There is no preventive detention power in peacetime at all. The Fourth, Fifth and Sixth Amendments require probable cause, a charge and a speedy trial, and Article I section 9 permits suspension of habeas corpus only in cases of rebellion or invasion. The Act would not survive.

The United Kingdom. Parliament may enact it, and no court may set it aside. What a court may do is read it compatibly with the Convention rights under section 3 of the Human Rights Act 1998, and if that is impossible, declare it incompatible under section 4, which does not affect its validity. That is exactly what happened in A v. Secretary of State for the Home Department, [2004] UKHL 56.

Germany. The Act would be tested against article 2(2) and article 104 of the Basic Law, and, if the government tried to amend the Basic Law to save it, against article 79(3), because the principles of articles 1 and 20 are unamendable.

Four systems, four answers, and only one of them, the British, in which the legislature has the last word.

The cases

Facts. A v. Secretary of State for the Home Department, [2004] UKHL 56, [2005] 2 AC 68, the Belmarsh case, concerned section 23 of the Anti-terrorism, Crime and Security Act 2001, which allowed the indefinite detention without trial of foreign nationals certified as suspected international terrorists who could not be deported. The United Kingdom had derogated from article 5 of the European Convention in order to enact it.

Held, by a House of nine, Lord Walker dissenting. The derogation order was quashed and a declaration was made under section 4 of the Human Rights Act 1998 that section 23 was incompatible with articles 5 and 14 of the Convention, in so far as it was disproportionate and permitted detention in a way that discriminated on the ground of nationality or immigration status. Lord Nicholls put the principle in a sentence: indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.

Why it matters here. It is the best available demonstration of constitutionalism without a supreme constitution. The section remained law after the declaration; what changed it was Parliament, which replaced the scheme in 2005. The limit was real and it was not judicial invalidation.

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, was a challenge by the head of a Kerala mutt to land reform legislation, which grew into a challenge to the Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments and to the extent of the amending power itself. Thirteen judges heard it over sixty eight days.

Held, by seven to six. Article 368 does not confer a power to alter the basic structure or framework of the Constitution. Parliament may amend any provision, including Part III, but not so as to destroy the Constitution's essential features.

Why it matters here. It is constitutionalism asserted against the amending power itself, in a text that contains no article 79(3). Worked in full in [The Basic Structure Doctrine].

Distinctions

What beginners get wrong

"Constitutionalism means having a written constitution." It does not. The United Kingdom has no codified constitution and a strong tradition of constitutionalism; several States with elaborate written constitutions have none. The distinction is the subject of [A Constitution Without Constitutionalism].

"Constitutionalism means the courts are supreme." It means power is limited, not that judges hold the limit. Switzerland limits federal legislative power and forbids its Federal Supreme Court to set a federal Act aside, by article 190; the check there is the referendum under article 141.

"Constitutionalism is a Western idea." The devices are traceable to particular Western failures, but the idea that a ruler is bound is not confined to any tradition, and the Indian Constitution's framers adopted, adapted and improved on the machinery rather than importing it.

Limits and criticism

It can protect an unjust settlement. Entrenchment freezes whatever was entrenched. The American Constitution protected slavery until 1865 and Plessy v. Ferguson, 163 U.S. 537 (1896), used the equal protection clause itself to license segregation for fifty eight years.

It can obstruct redistribution. Much of the Indian constitutional history from 1951 to 1978 is a collision between a right to property and land reform, which produced the First, Fourth, Seventeenth, Twenty Fifth and Forty Fourth Amendments.

It depends on things law cannot supply. A constitution cannot make judges brave, ministers honest or citizens attentive. Korematsu and Liversidge were decided under two of the strongest constitutional traditions in the world.

Quick revision

1. Constitutionalism is limited government made effective, not merely proclaimed.
2. Its elements: a superior law, limits that bite, division of power, an independent adjudicator, a lawful route to change, and accountability.
3. Magna Carta 1297 chapter XXIX asserts the limit; the American Constitution builds the machinery; article 79(3) of the Basic Law puts some things outside amendment altogether.
4. India: article 13 voids inconsistent law, article 32 guarantees the remedy. Canada: section 52(1) of the Constitution Act 1982.
5. A v. Secretary of State for the Home Department, [2004] UKHL 56: a declaration of incompatibility, and the section stayed law until Parliament changed it.
6. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: seven to six, no power to destroy the basic structure.
7. Having a constitution and having constitutionalism are separate questions.

Test yourself

1. Define constitutionalism in exam wording and name its elements. Constitutionalism is the doctrine that governmental power derives from and is bound by a superior law, together with the machinery that makes the limitation real: a superior law, enforceable limits, division of power between organs and levels, an independent adjudicator, a lawful amending procedure, and political accountability.

2. "A State with a written constitution necessarily has constitutionalism." Discuss. False. The written text is evidence of an intention to limit power; whether power is limited is a question about practice. India's own Emergency of 1975 to 1977 was carried out under the Constitution, using articles 352, 356, 358 and 359 and a series of amendments, which is why the distinction is on the syllabus.

3. How can the United Kingdom be said to have constitutionalism when Parliament is sovereign? Because the limits operate through means other than invalidation: the executive may do nothing without legal authority (Entick v. Carrington); ministers are answerable to Parliament and to the courts for the legality of their acts (M v. Home Office); legislation is read compatibly with rights under section 3 of the Human Rights Act 1998, and where it cannot be, the incompatibility is declared under section 4 and Parliament responds.

4. What does article 79(3) of the German Basic Law add to constitutionalism that article 368 of the Indian Constitution does not contain? An express, textual limit on the amending power: amendments affecting the federal division, the participation of the Lander in legislation, or the principles of articles 1 and 20 are inadmissible. India's limit is judicial, read into article 368 in Kesavananda Bharati, and is therefore a doctrine rather than a provision.