Rajeev Suri vs Delhi Development Authority and others. Transferred Case (Civil) No. 229 of 2020 decided on 5 January 2020.
Judgement Link: https://main.sci.gov.in/supremecourt/2020/8430/8430_2020_34_1501_25340_Judgement_05-Jan-2021.pdf
Constitutionalism 168. The principle of constitutionalism has been deployed by the petitioners to justify the alteration of aforesaid standards. The ideal of constitutionalism finds place in almost every constitutional discourse involving the state and the citizen and we need to reflect upon this ideal in the context in which it appears.
“Constitutionalism”, as an expression of political theory, holds the
distinction of receiving diverse meanings and unlike most other
concepts, the meanings are fundamentally distinct and
inexplicable beyond the specific context in which they are used.
The need for understanding this principle in its correct terminology
gets multiplied in a country with a written Constitution. What,
then, is the role of the principle of constitutionalism for a Court of
law performing functions under the umbrella of a written
Constitution?
169. A peculiar feature of the usage of this expression in
constitutional matters is that one side tries to project it as an
independent substantive rule, as opposed to it being a mere force
behind the rule, and the other side brushes it down as a redundant
theoretical concept. We must note that the true import of
constitutionalism cannot be understood by treating it as a
standalone concept of judicial application. Jurists across the
world have given different meanings to this word. Whereas some
have associated it with fundamental concepts of Rule of Law and judicial review as envisaged in the Constitution, others have
considered it as a radical idea for transforming the Constitution
over and above its true import. For some, judicial supremacy over
functioning of executive and legislature is considered as essential
to constitutionalism. For others, like Prof. Barendt275, the ideal of
separation of powers is the essence of constitutionalism. Building
upon the subjectivity of this concept, Jo Eric Khushal Murkens, in
“The Quest for Constitutionalism in UK Public Law Discourse”
notes that the substantive content of any constitutional discourse
is not likely to change due to this principle thus:
“… Every scholar above is able to convey her message (the
substantive concept of the rule of law, the legitimacy of
government action, and the core institutional values)
without requiring recourse to constitutionalism. In other
words, if constitutionalism were eliminated from
constitutional discourses, their substantive content
would remain unchanged.”
170. Constitutionalism, therefore, is a relative concept which
envisages a constitutional order wherein powers and limits on the
exercise of those powers are duly acknowledged. It is a tool which
is used to reach upto the ultimate goal of constitutionalization of
governance and it cannot be deployed to present an alternative model of governance. We must state that it would not only be
absurd but also fraught with dangers of overreach and ambiguity
if subjective principles of interpretation are applied by detaching
them from the textual scheme of the Constitution, particularly
when the textual scheme lays down an elaborate structure of
administration. For, to do so would be to drag a duly elected
Government on the edges as it would be under a constant fear of
being adjudged wrong on the basis of undefined principles which
appeal to “three gentlemen or five gentlemen sitting as a Court”.
And what will suffer is public interest in the form of public
exchequer including sovereignty of the nation.
171. In this regard, we must recall the enunciation of this Court
in Keshavan Madhava Menon277, wherein it is observed that an
argument on what is claimed to be the spirit of the Constitution is
always attractive, for it has a powerful appeal to sentiments and
emotion; but a Court of law has to gather the spirit of the
Constitution from the language of the Constitution. For, one may
believe or think to be the spirit of the Constitution cannot prevail
if the language of the Constitution does not support that view.
172. To conclude, the principle of constitutionalism is a work in
progress which is meant to infuse life and blood into an existing
scheme which has stood the test of constitutional validity and not
to nudge with the scheme itself. It may only be deployed to evolve
minimum standards of procedures prescribed by law. It is not to
undermine or supplant the elaborate statutory regulatory
schemes.
Compiled by S. Basavaraj, Advocate, Dakshsa Legal.
Image Courtesy. LiveLaw.
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