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Unit 3: Constitutions and Constitutionalism

in this concept so far. Third, a definite shift towards imbibing the values of a socialist concept are Notes
definitely visible to solve the pressing problems of a nascent social welfare state. It is for this
reason that essential liberties of the people have been suitably curbed in countries like South
Africa and Afghanistan. As a matter of fact, many developing countries are faced with a grim
challenge, something that was felt by President Lincoln when he said: “Must a government, of
necessity, be too strong for the liberties of its own people, or too weak to maintain its own
existence.”
Problems and Prospects of Constitutionalism
Mention, at this stage, must be made of the forces that work against the operation of a constitutional
government and whose results shake our faith in the concept of constitutionalism as an addiction
to the establishment of a democratic political order. Three factors may be discussed in this regard:
war, emergency and socio-economic degeneration. It is in the war time when the government
claims absolute power and in the name of defending the realm from foreign aggression goes to the
final extent of crushing the essential liberties of the people. The government undertakes several
measures like compulsory conscription, military training, nationalisation of major industries,
censorship of the press, etc. for the sake of defending the country. It appears that the framework
of a constitutional government is subverted during war times. Such a statement may and may not
be correct depending upon the nature of the case. Thus, whereas a constitutional government had
its total doom in countries like Italy, Germany and Japan during the days of the Second World
War, it could not have the same fate in other countries like France and Britain. A return to the
normal constitutional government occurred after the termination of hostilities.
A constitution may incorporate a particular clause saying that the powers of the government shall
be unlimited during the days of war or armed rebellion as we may see in the case of the Irish
constitution. It, however, depends upon the nature of the case whether such a categorical provision
goes against the very spirit of constitutionalism or not. It is said that the emergency powers of the
President, as given in the Indian constitution, look like a replica of the Weimer constitution wherein
the seeds of future totalitarianism were embedded. One may well disagree with such a rash
judgment and endorse the sane observation of Wheare: “The extent to which constitutional
government has been suspended in time of war varies a great deal. It need not be assumed that
war means the destruction of constitutional government in every case. Yet it is certain to put a
strain upon it and it usually suspends it in some degree.”
Allied with this is the second factor of emergency. The suspension of the constitutional government
is justified if there are the conditions of national emergency. It was under these conditions that
President Lincoln went to the unprecedented extent of using troops to crush the revolt of the
southern States of the American Union that had raised their heads in opposition to his mission of
banishing slavery. The British government took several important measures to meet the conditions
of emergency during the days of the first and second world wars. American President Roosevelt
went to the length of having ‘New Deal’ legislation in the 1930’s to face the conditions of great
depression. The Government of India had made several important arrangements after the
proclamation of national emergency in 1975 that were dubbed by its critics as the ‘murder of
democracy’. What we have said above applies here also. It depends upon the nature of the case
whether conditions of emergency entail the doom of the constitutional government or not. Thus,
while countries like the United States and Britain returned to the era of a limited government after
the termination of the conditions of emergency, others like Italy, Germany and Japan took the
matter to a point that their ‘constitutional governments’ had a quite inglorious end.
Finally, there is the factor of the social and economic distress. Eradication of the conditions of
starvation, famine, illiteracy, disease, poverty, squalor, prestilence, etc. requires discretionary action
of the state. The government is called for to take immediate and drastic action to alleviate the
sufferings of the people. What the Government of India has been doing since the inauguration of
the five year plans can be cited as a clear instance in this direction. We may once again reiterate the
same point that the outstretched authority of the government to alleviate the conditions of social
and economic distress may, and may not, entail the destruction of the constitutional government.

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