Constitutionalism - An Indian Comparative Approach Towards International Countries
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Category: Constitutional & Human Rights
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CONSTITUTIONALISM: AN INDIAN COMPARATIVE
APPROACH TOWARDS INTERNATIONAL COUNTRIES
Shreshtha1 & Dr. Dev Parbhakar2
ABSTRACT
Constitutionalism is not just a written or unwritten constitution: It is a policy of living by rules. Once government force is used, however, that comes from and is limited by a higher order of law. Its followers respect the rule of law, separation of powers, individual and civil rights. This article provides a comparative and theoretical overall view of constitutionalism, dissecting its roots in tradition and in the Middle Ages, through Enlightenment ideas down to present times from postcolonial constitutions and transformational constitutions. It pays particular attention to Indian constitutional jurisprudence that shows how the Preamble, Fundamental Rights, Directive Principles of State Policy, juristic conceptions and institutional devices are implemented. Comparisons with the United States, Britain and South Africa put Indian constitutional methodology in global perspective.
Finally, the paper considers new threats to constitutionalism in the digital age where law, governance and social change interact. Keywords: Constitutionalism; Rule of Law; Separation of Powers; Judicial Review; Human Rights; Indian Constitution; Comparative Constitutional Law; Transformational Constitutionalism
1 LL.M., Chandigarh University, India.
2 Assistant Professor at UILS, Chandigarh University, India.
1. Introduction
Constitutionalism is a concept consisting of several norms: limited government, rule by law and the protection of fundamental freedoms. 3 A constitution may be present in every modern state, but this does not necessarily mean that there is constitutionalism. True constitutionalism establishes a political culture; the active involvement of legal institutions and mechanisms that make sure State power is exercised in consonance with the constitution. It includes both structural and substantive elements. The structure of the institutions of government, such as the desperation between legislature, administration and judiciary; and guaranteeing individual collective rights. The Constitution enacted by India's 1950 itself explicitly among the makers of the Indian Constitution, led by Dr.
Ambedkar and other leaders, designed a mixed Government form that encapsulated both the traditions on the British pattern and American emphasis judicial review, limited power, and fundamental rights. 4 According to its preamble, basic rights and directive principles of state policy, the Constitution belongs not only to a legal framework but it is a conception of an ideal social order. It is an organism fuelled by judicial interpretation political practice civic engagement5 that is fluid, renewable. It is a living being whose tool is judicial interpretive political practice civic engagement which is dynamically fluid and renewable. Indian Supreme Court jurisprudence, with the doctrine which the court then gave birth to in Kesavananda Bharati v. State of Kerala (1973), the Indian Constitutionalism is on the permanent shift as stated in that of the basic structure.
6 The clash between executive discretion and constitutional restraints can be easily illustrated and brought to the fore by mere episodes such as the 1975-77 emergency. They emphasize the need to be vigilant and to be an active citizen. 7 This paper will be aimed at exploring the concept of constitutionalism, in what form it has grown, its fundamental driving powers, and impact on Indian life, and whether India is a pilot guided by this principle or not. Through an analysis of the constitutional clauses, judicial 3 Sartori, G. (1962). Constitutionalism: A preliminary discussion. American Political Science Review, 56(4), 853–864.
4 Austin, G. (1966). The Indian Constitution
Cornerstone of a nation. Oxford University Press.
5 Baxi, U. (1978). The constitutional quicksand of emergency powers
A critique. Indian Journal of Political Science, 39(4), 583–605. 6 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.: The Supreme Court of India established the “basic structure” doctrine, limiting Parliament’s power to amend the Constitution in ways that would alter its fundamental framework.
7 Shukla, V. N. (12th ed.). (Year). Constitution of India (pp. 870–890).
rulings and academic literature it attempts to situate Indian constitutionalism within the framework of the international system.
2 Evolution of Constitutionalism
A Historical Perspective It points out how the constitutional values, like limited government, separation of powers, and the safeguarding of rights were gradually changed since their inception in early governance in ancient and medieval times, to the contemporary constitutional democracies. Historical perspective is a term that shows that the discussion deals with tracking down of the major milestones, thinkers and constitutional documents that informed this development.
2.1 Classical Foundations
Constitutionalism has its roots in thoughts rooted deep within history. As Aristotle would have said, it is based on strong law, the contrast between rule by law and rule by men is a subject Aristotle raised. He pointed out that laws, not arbitrary rulers, should govern society. The same thinking applies in India; Kautilva's Arthashastra also stresses the responsibility of the ruler and the importance checks and balances in administration.8 Early precedents for constraining rulers, such as Athenian democracy Oriental Republican institutions, laid the foundation for the idea that government needs have legal moral limitations. These classical foundations make a point of Constitutionalism as a principle intended to keep power arbitrary and to guarantee the public order. Is important to include here the limitation of power thesis.
2.2 Medieval Developments
In the Middle Ages European political structures began to embed constitutional principles in practice, though this was usually confined to the elite. The Magna Carta came into being as a landmark document in the history of constitutionalism after 1215, which for the first time imposed specific legal limits on the power of the English monarchy; it also established that even rulers are bound by law.9 This was then succeeded by Complaints of the Commons (1621), Petition of Right (1628) and Habeas Corpus Act (1679).The Bill of Rights (1689) developed those limitations further by setting out a formalized protection to prevent monarchical abuse. 8 Aristotle. (n.d.). Politics (Book III); . Kangle, R. (Trans.). (1960). The Kautiliya Arthashastra. Motilal Banarsidass.
9 Lutz, D. S. (1988). The origins of American constitutionalism. Louisiana State University Press.
Initially applicable to only elites, these legal instruments produced concepts that have since become part of the world′s enduring legacies.
2.3 Enlightenment and Social Contract Theory
Enlightenment saw a sea-change in constitutional philosophy. The ideas of popular sovereignty, individual freedom and separation of powers were championed by thinkers like John Locke, Jean Jacques Rousseau and Montesquieu. 10 The second treatise of government by Locke postulated that the role of government is to secure life, liberty and property, Locke's Second Treatise of Government argued that the purpose of government is to protect life, liberty and property, and that people have a right to resist the exercise of arbitrary power by authorities. Montesquieu's The Spirit of Laws laid down principles for dividing legislative, executive and judicial powers so as to restrain tyranny. These ideas influenced the emerging democratic constitutions.
The United States Constitution of 1787 incorporated separation of powers, federalism and a Bill of Rights, while the French Declaration of the Rights of Man (1789) stressed liberty, equality and fraternity. 11 Both cases illustrate how Enlightenment constitutionalism was translated into legal and institutional restraints on power.
2.4 Postcolonial Constitution
The 20th century saw the first wave of self-determination. In 1945, however, at the end of this century as well as in 1960s and 70s, did people begin to pursue a political right constitutionalism that also closed its eyes on Socialism. Newly independent states such as India, sought constitutions that were not only instruments of law but also tools to transform society in the pursuit of social justice. The Indian Constitution enshrines liberal rights alongside directive principles aimed at economic and social equality. 12 This represents a “constitutional morality”13-a phrase originally coined by K. M. Munshi in 10 Klare, K. E. (1998). Legal culture and transformative constitutionalism. South African Journal on Human Rights, 14(1), 146–188. 11 K. M. Munshi's remarks on “constitutional morality”: Constituent Assembly Debates, Volume VII, 1948. 12 Klare, K. E. (1998).
Legal culture and transformative constitutionalism. South African Journal on Human Rights, 14(1), 146–188. 13 K. M. Munshi's remarks on “constitutional morality”: Constituent Assembly Debates, Volume VII, 1948. court but not heard again until L. Chandra Kumar vs Union of India (1997)14. The same approach is also echoed in the Constitution of South Africa of 1996 which offers express protection to social and economic right to housing, health and education. 15 Because of this, transformative constitutionalism seeks not only to set legal limits on government power but also alter society’s shape. It does not merely limit power, however; it is the tool that enables one to construct justice in constitutional space.
2.5 Globalization and the Rise of Constitutionalism
By the mid-20th century, constitutionalism was a global standard. Both the UN Charter and (1945) and Universal Declaration of Human Rights (1948) enunciate such universal principles as human dignity, equality, freedom. 16 New states which emerged from colonialism and wars national liberation put into their new written constitutions all manner of rights, following this international trend as well as reflecting each country's own social conditions. In India, the Constituent Assembly consciously sought to draw upon all these international models also taking into account domestic imperatives such as religious pluralism, federalism and social justice.
17 The Constitution‘s extensive provisions on fundamental rights, directive principles and checks and balances within the institutions it creates attest to how universal principles of constitutional law can operate well in the Indian socio-political context.
3. The Core Principles of Constitutionalism
Constitutionalism is rooted in certain principles which interlock with one another to give it substance. These principles turn the constitution from a mere symbol of values into something that actually shapes and limits political power.
3.1. Supremacy of the Constitution
Constitutional supremacy doctrine stipulates that the laws, executive action and structure of government must be in line with the constitution. Example, In India:
14 L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
15 Constituent Assembly Debates. (n.d.). Vol. X.
16 United Nations, (1945). Charter of the United Nations; United Nations, (1948). Universal Declaration of Human Rights.
17 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
3.1.1 Article 13
All laws that violate the fundamental rights are null and void.18
3.1.2 Article 245
Parliament or the legislature of a state has power to make laws with respect to any matter not enumerated in list II or III (in the Seventh Schedule) including a law creating a new cause of action. In Kesavananda Bharati v. State of Kerala, 1973 (identified as a landmark case) of 13-judges made it very clear that Parliament cannot change what they refer to as the basic structure of the Constitution. 19 This rule renders constitutional supremacy both in text and construction. In Minerva Mills v. This was once again reiterated by the Supreme Court in Union of India (1980): any changes that improves the balance between the Fundamental Rights and Directive Principles are unconstitutional. 20 The Supremacy of the Constitution is also relevant to the international world. In the United, States, all legislations will be founded on this Constitution and federal legislations more so.
Supremacy Clause (Article VI) The 1996 Constitution of South Africa has provided the answer to this; a law that is inconsistent with the provision of this Constitution is void. 21
3.2 Rule of Law
The rule of law implies that there are legal rules to all individuals and entities in the state, including the state. What A.V. Dicey recognized as the three essentials of the rule of law are the following: supremacy law, equality before it, and principles of predominance law.22 In India, the rule of law has been a fundamental aspect incorporated in the Constitution by the Supreme Court just like in other Western nations. The Court stated that the government was not permitted to behave in any arbitrary manner but instead adhere to set standards of law that led to the creation of fairness, transparency accountability. The example is that the safeguarding of personal liberty as identified in Article 21 is so broad as to have a guarantee against 18The doctrine of constitutional supremacy and its references—see Indian Constitution, Articles 13 and 245.
19 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
20 On the rule of law
A.V. Dicey, “Introduction to the Study of the Law of the Constitution” (London: Macmillan, 1885), especially Part II.
21 U.S. Constitution, Article VI (“Supremacy Clause”); Constitution of South Africa, Section 2.
22 Constitution of India, art. 50, 121, 124, 211; Article 50 mandates the separation of the judiciary from the executive, while Articles 121, 124, and 211 address powers and functions of Parliament, the Supreme Court, and High Courts. oppressive treatment solely in the police custody before trial and issues that can occur before the trial. Procedural guarantees can be implicitly found in the Indian Constitution in the guarantee of life and personal liberty in Article 21 and the prevention of preventive detention in Article 22. Cases such as Maneka Gandhi vs. Union of India (1978) expanded the limits of the personal liberty and emphasized more on procedural justice through judicial activism.23
3.3 Separation of Powers
Separation of powers is necessary to avoid the confinement of power. Though India is not a firm believer in a strict theory of separation, such as the one that the US Constitution affirms, the Constitution stipulates that the judiciary, the legislature, and the executive are independent institutions, in a functional sense:
3.3.1. Article 50 provides for that the judiciary shall be kept separate from the executive.
3.3.2. Articles 121 and 211 protect legislative privileges and judicial independence.
3.3.3. Article 124 provides for an independent Supreme Court and adversely and its
appointment.24 In this way, each branch can check the other. For example, review of executive action by the judiciary has checked the authorities; and parliamentary oversight keeps a watch of its activities.25
3.4 Judicial Review
The main method of enforcing the constitutional norms is the judicial review. Articles 32 and
226 provide the citizens, the means of approaching directly to Supreme Court and High Courts
23 On checks and balances, see Seervai, H. M. (4th ed.). (Year). Constitutional law of India.
24 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); The U.S. Supreme Court established the principle of judicial review, allowing courts to invalidate legislation that violates the Constitution. 25 Constitution of India, arts. 14–18, 19–22, 23–24, 29–30, 32, 226; Articles 14–32 enumerate fundamental rights, including equality, freedom, protection from exploitation, and cultural/educational rights, with Articles
32 and 226 providing mechanisms for enforcement through the judiciary.
to get fundamental rights enforced.26 Besides Judicial review of normal type cases, there are other aspects that involve judicial review such as:
3.4.1 Review of legislative action
Making sure that laws conform with the Constitution.
3.4.2 Review of executive action
Preventing abuse of administrative power.
3.4.3 Examination of constitutional amendments
It is important to make sure that the amendments will not contravene the fundamental framework. In Marbury v. U.S. Supreme Court came up with judicial review (Madison 1803) which India accepted and applied in order to make the rule applicable to constitutional amendments.27 The balance of power has been preserved by the Indian Supreme Court through the application of this principle.
3.5 Guarding of Basics Rights
The Part III of the Indian Constitution defines the fundamental rights as the foundation of constitutionalism. They include: • Right to Equality (Articles 14–18) • Right to Freedom (Articles 19–22) • Right against Exploitation (Articles 23–24) • Cultural and Educational Rights (Articles 29–30) • Right to Constitutional Remedies (Article 32)28 Judicial approval has increased these rights to cover privacy (K.S. Puttaswamy and Anr. Legal Representative, Union of India, 2017)29, Environmental rights (Subhash Kumar vs. The State
26 Ibid.
27 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1; The Supreme Court of India recognized the Right to Privacy as a fundamental right under the Constitution, expanding the scope of personal liberties. 28 Subhash Kumar v. State of Bihar, AIR 1991 SC 420: The Supreme Court of India recognized the right to a clean environment as an integral component of the right to life under Article 21 of the Constitution. 29 Constitution of India, arts. 148, 324; Article 148 establishes the office of the Comptroller and Auditor General (CAG) for ensuring financial accountability, while Article 324 vests the superintendence of elections in the Election Commission of India. of Bihar, 1991)30 and those of marginalized people. This legal system is more secure as a result.
3.6 Responsibility and Transparent Accountability
Responsibility is a basic tenet of constitutionalism set within the framework established by the Constitution. Institutions responsible for monitoring: • Election Commission (Article 324): Free and fair elections promised. • Comptroller and Auditor General (Article 148): Public funds properly spent. • Central Vigilance Commission and anti-corruption agencies (statutory, but in line with the spirit of the law).31 Through these layers of restriction on government action, the Constitution stifles and locks down the arbitrary action typical of autocracies.
4. Constitutionalism in the Indian Context
4.1 Preamble and Constitutional Vision
An example is that the Preamble indicates that India is a Sovereign, Socialist, Secular and Democratic Republic. Besides pursuing justice and freedom, among other fraternal sentiments. However, in ten years of this, a Socialist state compels its citizens to believe in the preamble, which according to the decision of the Supreme Court in Kesavananda Bharati, is the key to the philosophy of the Constitution.32 It predetermines the interpretation and defines guidelines of reasoning among judges.
4.2 Rights and Directives
Where basic rights (Part III) are justiciable, the unelected directive Principles (Part IV) are meant to govern but are not enforceable as such. These two have been brought by the courts 30 On the Preamble and interpretative role: Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461. 31 Unni Krishnan, J. P. v. State of Andhra Pradesh, (1993) 1 SCC 645; The Supreme Court of India held that the right to education is implicit in the right to life and personal liberty under Article 21 of the Constitution. 32 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461; This landmark judgment established the Basic Structure Doctrine, holding that while Parliament may amend the Constitution, it cannot alter its essential framework or basic features. into agreement with each other: Unni Krishnan vs.
State of Andhra Pradesh (1993): Recognised the right to education in Article 21 (therefore following directive principles). 33 Minerva Mills (1980): Confirmed the balance between the rights and directive principles and neither of them was to be bargained. It is so since they are sub-reflections of the poor people who are seeking change by altering their Constitution themselves.
4.3 Judicial Innovations
Here is how judicial inventions have strengthened Indian Constitutionalism:
4.3.1 Basic Structure Doctrine (Kesavananda Bharati, 1973)
This overturns the idea of unlimited parliamentary power.34
4.3.2 Emergence of Public Interest Litigation (S.P. Gupta Case (1981))
By allowing courts to deal with collective grievances, it helps expand access to justice.35
4.3.3 Judicial Activism
Interpreting rights expansively, the courts have taken account of environmental protection, privacy, and social justice.36 These innovations ensure that constitutionalism remains dynamic, adapting to changing social and political contexts.
4.4 Federalism, Decentralization, and Emergency Provisions
India’s quasi-federal structure is to balance central power with regional autonomy, Articles 245–263 define the scope of legislative authority. The 73rd and 74th Constitutional Amendments constitutionalised local self-governments.37 Article 352–360 on emergency provisions allows the centralization of power in times of crisis. Chevron38 reveal that if used incorrectly, as it was during the Emergency from 1975 until 1977, these can disrupt
33 Public Interest Litigation
S.P. Gupta v. Union of India, AIR 1982 SC 149.
34 On judicial activism and expansion
S.P. Sathe, “Judicial Activism in India: Transgressing Borders and Enforcing Limits” (Oxford: OUP, 2002). 35 73rd and 74th Amendments: Local self-government status, see Constitution of India, Articles 243G, 243Q.
36 Emergency provisions, Articles 352–360; experience of abuse during 1975–77 Emergency, see 44th
Amendment Act. 37 Chevron, “Emergency Powers and Democratic Accountability,” in International Journal of Constitutional Law, Vol. 3, No. 2 (2005): pp. 252–258.
38 On rigid amendment powers in U.S.
U.S. Constitution, Article V. constitutional governance. In response this proved the 44th Amendment reduced presidential powers and expanded civil liberties.39
5. Comparative Perspectives
By comparing India's constitution with those from other developed nations, such as Japan or even China in modern times.
5.1 The United States Model
American constitution is traditional constitutionalism. It incorporates hard demands of constitutional amendments, a separation of powers into checks, balances and a privileged system of rights that are difficult to alter. Written and Rigid Constitution are some of its specific characteristics. The amendment of the U. S. constitution would need at least two-thirds of both houses of congress and three-fourths of states to approve and provide the constitution with the required amendments (Article V). This guarantees stability. Separation of Powers: The various branches of state power, the executive, legislature and the judiciary are separated and there are checks and balances in each system to prevent tyranny. 40 . Judicial Review: In Marbury v.
Judicial review, which was introduced by Madison (1803) through legislation, allows the nullification of any presidential statute or executive action by the courts in opposition to the organic order of the law in the country. Despite these keen points, the U. S model is vulnerable to several threats: in particular, partisanship in judicial appointments, heavy-handed presidents and disputes with states over powers. For India it is worth noting that institutional independence itself is crucial for the maintenance of constitutional democracy.
5.2 The United Kingdom Model
However the United Kingdom's constitution offering no clear cut rules found in statutes, conventions and judicial decisions is regarded as an unwritten and flexible document. 41 Common Law in the UK is exemplary of constitutionalism without written constitutional norms, institutions and civil life have helped to produce the oldest functioning democracy in 39 On the flexible nature of the UK constitution: Vernon Bogdanor, “The New British Constitution” (London: Hart, 2009). 40 On ‘constitutionalism without written norms’: Sir Ivor Jennings, “The Law and the Constitution” (5th Ed. , 1959). 41 South Africa Constitution (1996), Sections 26–29 (social rights), Section 9 (equality); “Government of the Republic of South Africa v. Grootboom,” 2000 (11) BCLR 1169 (CC). the world.
42 India teaches us that constitutionalism is embedded in a political culture and comes as much from lived experience as it does from texts.
5.3 South Africa Model
South Africa's 1996 Constitution stands as an example of transformative constitutionalism.
5.3.1 Socio-Economic Rights
Housing, healthcare and education are explicitly protected under sections 26 to 29.
5.3.2 Judicial Enforcement
The Constitutional Court actively enforces these rights, balancing social justice with legal accountability (Grootboom Case, 2000).
5.3.3 Equality and Non-Discrimination
Section 9 lays down that there should be affirmative measures to redress historical injustices.43 South Africa is providing a model of the bridge that constitutionalism can provide between formal legality and reality in society. India’s directive principles and its progressive judicial interpretations are part of the same quest for social justice.
5.4 Lessons for India
If there is a contemporary application, though in understanding the comparison, the lesson is as follows:
5.4.1 Institutional integrity is Supreme
The place against usurpation of right, the separation of powers has been interpreted well when it is extremely prescribed by senior jurist nations or courts.
5.4.2 Socio-Economic Goals have to be imprinted with an idea of transformation
Provisions of social justice and human development should be included in the constitutions to strengthen their credibility.
42 Granville Austin, “Working a Democratic Constitution
The Indian Experience” (Oxford: OUP, 1999).
43 On contemporary challenges, see Sujit Choudhry et al., “The Oxford Handbook of the Indian Constitution” (Oxford: OUP, 2016).
5.4.3 Legal Mechanisms are Entwined in Political Culture
Well, the success of constitutional norms must depend upon public cognition, civic on our part, cognition and institutional power.44 India’s composite model is that a written constitution combined with judicial review and directive principles were the result of both liberal (predominantly) as well as transformative mode.
6. Contemporary Challenges to Constitutionalism
Even by the standard of perfect design, though, the world we live in today has raised new challenges for constitutionalism in India and elsewhere.45
6.1 Populism and Majority Pressures
There are leaders who appeal to populism as a means of bypassing checks they dislike. This inclination undermines the rule of law and reduces the minority protection. Judicial activism is good but then also leads to more fighting with the institutions. Judicial activism is good but then it also triggers more fight with institutions. There is a tension between popular sovereignty and a constitution.
6.2 Emergency and Security Legislation
Laws that have been brought in like the Prevention of Terrorist Activities Act were not only outdated but also against fundamental rights. One of the lessons that must not be learned is the violation of the State of Siege (1975-77) which is known as the Emergency. So also, the alert judicial control, the lawful protections and guard-dogs of the civil society.
6.3 Technology, Digital Governance, and Privacy
The digital era poses new challenges in an era that requires the constitutional construction. 44 Basu, D. D. (2015). Introduction to the Constitution of India (22nd ed.). New Delhi: LexisNexis.(See chapters on Emergency provisions and the Prevention of Terrorism Act, 2002.); Prevention of Terrorism Act, No. 15 of
2002 (India).(Emergency legislation enacted post-2001, later repealed in 2004.)
45 Puttaswamy v. Union of India (2017); (Recognized the fundamental right to privacy as intrinsic to Article 21 of the Indian Constitution, laying the groundwork for data protection jurisprudence.)
6.3.1 Data Privacy
Biometric databases (Aadhar), universal surveillance (Big Brother and now some) and AI administration would have far-reaching privacy and consent connotations.
6.3.2 Freedom of Speech
Fifth Amendment rights are involved in Internet regulation, censorship of social media and control of digital content.
6.3.3 Automated Decision-Making
Systems carried out automatically may violate rights, and thus, there must be legislation. The Perlberg embodies the technological reality and influences the constitutional notions since SC considers the right to privacy as one of the primaries (Puttaswamy, 2017).
6.4 Judicial Accountability and Overreach
The judicial activism has expanded rights, but may also have a tendency to obscure the distinction between judicial and administrative roles. Constitutionalism calls upon the court to safeguard human rights in a democratic sensitive way. It must have the right checks; be transparent and accountable in case something is to have an institutional credibility.
6.5 Civic Education and Public Participation
In case we want to have a constitutional democracy, it must be there in the presence of an enlightened citizenry. Respect to laws and institutions is created by the public commitment to constitutional knowledge. Mass education in developing the rule of law and constitutional culture.
6.6 Environmental and Climate Challenges
In place of environmental issues, constitutional climate issues have now become the new governance:
6.6.1 Right to a Healthy Environment
According to the Right to Life (Article 21). Sustainable Development: The governments have been put in check through PILs to carry out destruction of environmental cover (M. C. Mehta v. Union of India, 1987). The concept of dynamic constitutionalism is a strand of thread in this paper. The legislation has to support the needs of the global sustainability.
7. Methodology
It is research that is basically a combination of doctrinal and comparative research. We have doctrinally the Constitution of India itself which serves as bases of interpretation. The same is done with official court pronouncements and great debates in Parliament. Notable judicial interventions into the Indian constitutional history such as Kesavananda Bharati v. State of Kerala (1973) and Minerva Mills v. Union of India (1980) are critically appraised in the attempt to comprehend how the courts bring the constitutional doctrine into action. The sources are also secondary, including academic papers and journal articles and comments. H. M. Seervai or M. P. Jain or Granville Austin and more recently Upendra Baxi give a goldmine of constitutionalism in India. In this respect, they have theoretical and practical standpoints.
The US, UK and South Africa have described constitutionalism in the comparative section. This discussion assists in contextualizing the Indian constitutionalism but also indicates that similarities and differences with other legal family on whether advocates practice a rule of law distillation, separation of power powers and freedom of petition in sui generis jurisdictions or different degrees of rights guarantee.
8. Conclusion
As an expanding system and framework of thought, constitutionalism is changing in oral tradition applying insistently to give response to the many levels that the dating scene. It has been developed in Indian context as artistic fusion of the constitutional traditions of the Indian land and few borrowings of other nations. The plural of Indian Constitution with its peculiar mixture of rigidity and flexibility displays how international constitutional standards like the separation of power, the judicial control, the basic rights were adapted to the Indian social order and political structure to be called the indigenization of international constitutional norms.
Comparison with other nations, that in all constitutionalism is likely to diminish arbitrariness of power, and to maintain liberties of the individual, but that it is characterized or rather established by historical, cultural and ideological dependence. Through this interpretation, the constitutional morality and democracy in India have acquired a new life since it continually recreates itself in the processes of judicial activism and participatory democracy in the dynamics of transformative justice, which makes our Constitution a living tree. Indian comparative constitutionalism tells us at the end of the day that it is not only textual engineering that makes a constitution a successful project, but also that pooled constitutional culture that sustains it across the nations and through time.
9. References
I. A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed., 1959).
II. Granville Austin, The Indian Constitution: Cornerstone of a Nation (1966).
III. H.M. Seervai, Constitutional Law of India (4th ed.).
IV. M.P. Jain, Indian Constitutional Law (8th ed.).
V. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
VI. Minerva Mills v. Union of India, (1980) 3 SCC 625.
VII. Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1.
VIII. S.P. Gupta v. Union of India, (1981) Supp SCC 87.
IX. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
X. M.C. Mehta v. Union of India, (1987) 1 SCC 395.
XI. Government of the Republic of South Africa v. Grootboom, 2000 (11) BCLR 1169 (CC).
XII. Constituent Assembly Debates (India).