According to Austin and his theory of law, a sovereign is unchallengeable and hence unquestionable. He asserts that moral considerations have no bearing on the content of laws. Constitutionalism, in contrast, holds that the legislature’s authority should be limited in order to increase the range of rights available to the nation’s citizens. Constitutionalism has a transforming effect. The basic principle of transformative constitutionalism is to encourage social, economic, and political transformations by interpreting and applying the provisions listed in the constitution in different ways. It aims to safeguard the authority that the citizens of this nation are constitutionally entitled to, which includes the rights guaranteed by Part III of the Indian Constitution. The most essential defense against the state’s arbitrary use of its power is found in fundamental rights. The states are constrained by the fundamental rights, which tell them what not to do.
The experiences of colonial authority, in which arbitrary laws and executive acts frequently curtailed fundamental freedoms, had a profound impact on the writers of the Indian Constitution. A constitutional framework that would protect individual rights and limit state power was urgently needed given the historical context. By giving the constitutional text its importance, constitutionalism makes certain that the government is “legally limited” and that its power is derive from upholding these constraints against the government. It is ultimately imperative on the state to set down restriction on its power. A state must take steps to restrict its authority and guarantee its citizens’ fundamental rights in order for it to function as intended. Among the multitude of forces that shaped the idea of Part III of the Constitution, constitutionalism was a major driving force. The authors of the constitution were highly understanding of the need to protect fundamental rights from abuse by the government because of India’s colonial past. Our constitution is coherent because of the well-known Indian Constitutional principles, which include secularism, limited government, reasonableness, powers of judicial review, the notion of rule of law and separation of powers, fundamental rights, and many other ideas.
Indian constitution provides for non-justiciable directive principles of state policy in Part IV and basic right in Part III, which are based on the traditional and civil political rights enumerated in Articles 2 through 21 of the UDHR. The preamble provides both of them the authority and power, and when combined, they state the essential ideals and make up the core concepts of Indian Constitution. As one of the most crucial foundations supporting the nation’s democracy is the judiciary. By drastically interpreting the constitution—which is essential to achieving justice—the judiciary plays a major role in this process. In addition, the Supreme Court has upheld the constitutionality of many laws by declaring unjust portions to be unconstitutional. The court concluded in Puttuswamy v. Union of India that article 14, 19, and 21 guarantee the right to privacy as a basic right. In contrast, the court recognized transgender persons’ fundamental constitutional rights and deemed them to be the third person in National Legal Service Authority (NALSA) v. Union of India. In Maneka Gandhi Case, Justice Bhagwati stated that the state is obligated to refrain from infringing upon individual liberty in all of its forms by constructing a “pattern of guarantees on the basic structure of human rights.” The spirit of constitutionalism in India did not start to flow until after this particular instance. In the case of Air India v. Nagesh Mirza, the court noted the significance of preserving the right to equality under Article 14 and upheld the supremacy of constitution as well as the requirement that public agencies operate in harmony with its established standard principles. Only transformative constitutionalism allowed the Supreme Court to render its significant decisions, which addresses issues such as decriminalizing same-sex relationships, granting rights to the third gender, and gender equality in accessing places of worship like Sabarimala. This highlights the influence of transformative constitutionalism on how the Indian constitution is interpreted
As a safeguard to individual liberty, Article 32 gives the Supreme Court the authority to grant writs for the enforcement of basic rights. In s same vein, article 226 gives the High Courts the authority to provide writs, orders, or directives, for any reason, including enforcement of fundamental rights. According to article 13, any executive orders and laws which are at odds with the rights outlined in Part III are null and invalid. The Supreme Court is empowered to implement remedial measures under Article 32 in the case that the governing body attempts to breach Article 13.Despite not being a representative body the supreme court can intervene to allow citizens whose rights have been abused to seek redress. Artices 32 and 226 guarantee that constitutionalism is a reality and not just a fancy word that is used to sound good. The Indian Constitution’s structure and principles guarantee that the Executive and Legislative branches’ authority is restricted, preventing these bodies’ discretion from becoming unreasonable or arbitrary. The Indian courts have dedicated most of their time in defending the idea of constitutionalism. Therefore, constitutionalism can clearly be seen by the way it is reflected in the Indian Constitution through the protection of basic fundamental rights. Constitutionalism has in fact been a driving force behind the conceptualization of Part III rights in the Indian Constitution.
By- Moukthika