Spread the love for law

About the Author:

Riddhi Kashyap is a second year law student of Symbiosis Law School, Hyderabad.

The concept of constitutionalism is described as the idea or pattern which focuses on the principle through which the government derives its power and is also restricted by it. Rule of law is supreme and all the government authorities are expected to follow it. All their powers and roles are based on the law defined. The word constitutionalism is derived from the constitution. However, there is a remarkable difference between the two. The Constitution is a rule book where laws are defined and described whereas constitutionalism is an ideology which says that powers must be practiced under the limitations of law.

There are many definitions and theories revolving around it. However, the core features remain the same. Constitutionalism states that law is fundamental and the government is only legitimate until it remains under the fundamental power of law. Another core feature is that civil liberty must be protected and given equal rights. However, there is another concept of Judicial Activism which has been debated to be in contradiction to Constitutionalism. Black’s Law dictionary defines it as “a philosophy of judicial decision making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”  It gives power to the judges to think and act beyond the limitations of predefined law. This includes interpretation of laws and statutes and enhancing it for further utilization.

The sources of law have been constitution and Judicial precedents. Therefore, it can be said that judicial activism is a method of increasing reliable and practical sources of law. This empowers the judge to think beyond limitations with a broader perspective. The practical application of such a concept in India was first seen in the case of I. C Golak Nath and others v. State of Punjab and another. In this case, the concept of prospective ruling was seen for the first time. The court held that it is the duty of the court to give a wider perspective to the rules enshrined in the constitution. This is done for the smooth running of community.

However, it is believed that judicial activism has given way too much power and freedom to the judicial officers and this is in contrast to the concept of Constitutionalism. There has been an on-going debate for a long time. Therefore, it can be derived that both Constitutionalism and Judicial Activism are equally important for better running of the Judicial System. Where on one hand Constitutionalism sets limitations and avoids abuse of power, on the other hand Judicial Activism allows one to think beyond limitations and define new practical approaches for the better running of society.  

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