Limited Government in India | Explained

Limited Government in India | Overview

• Introduction
• History
• Limited Government
• Limited Government-Features
• Elements
• Limited Government And Democracy
• Apex Court Recognising Limited-Government
• Criticism
• Conclusion

Limited government feature in a state keeps the powers of the state in check. Modern countries have been structured into organs, namely executive, legislature, and judiciary, with the common notion that the powers between these organs be divided and separated to avoid perversion of power. A genuine democracy consists of constitutions with legal and political organs governed by the government. Under the said situation, if the constitution is inadequate, it will affect the rule of law and the nature of democracy.

The idea of separation of powers does not connote that the three organs function alone, rather their nature is independent while maintaining their autonomy. This entails the concept of limited government, and it coupled with the supremacy of law, makes the concept of constitutionalism. Limited government is the idea that government should have limited power and it must be checked and limited.

I. Introduction

The most famous and acceptable form of government in the modern-day world is democracy. The majority of present-day nations have adopted democracy. There are hardly any countries that still follow dictatorship or military rule.

The main tenet of a democracy is the Constitution, which is also the supreme law of the land. In the event that the Constitution is lacking or poorly drafted, the popular government itself is bound to flounder as a result of the imperfections that will be present in the framework because of lawlessness. It is likewise significant that the government doesn't in any capacity supersede the law and set up its incomparability in the country. To limit the forces of government to give them limited position, the ideas of constitutionalism and limited government have been enunciated by numerous scholars.[1]

II. History

In examining the set of experiences and nature of constitutionalism, a correlation is regularly drawn between Thomas Hobbes and who is thought to have protected, individually, the idea of unavoidably limitless sovereignty (e.g., Rex) versus that of sovereignty limited by the provisions of a common agreement containing considerable limits (e.g., Regina).[2] Yet, a similarly decent point of convergence is the legal English scholar John Austin who, similar to Hobbes, felt that the actual idea of limited sovereignty is ambiguous.

For Austin, all law is the order of a sovereign individual or group of people, thus the idea that the sovereign could be limited by law requires a sovereign who is self-restricting, who orders him/her/itself. Be that as it may, nobody can "order" himself, besides in some metaphorical sense, so the thought of limited sovereignty is, for Austin (and Hobbes), as unintelligible as the possibility of a square circle.[3]

Austin says that sovereignty may lie with individuals or some other individual or body whose authority is limitless. Government bodies – e.g., Parliament or the legal executive – can be limited by established law, yet the sovereign – i.e., "individuals" – stays limitless. Be that as it may, assuming we distinguish the commandants with "individuals", we have the dumbfounding outcome recognized by H.L.A. Hart – the officers are telling the commandants.

III. Limited Government

India is a democracy-based country with a composed and written Constitution. Law and order is the reason for the administration of the country and every one of the regulatory and administrative bodies has the duty to follow it in both letter and spirit. It is normal that Constitutionalism is a characteristic result of administration in India. However, the involvement during the time spent administration in India over the most recent sixty years is a blended one.

From one perspective, we have fantastic managerial designs set up to direct even the minutest of subtleties identified with government assistance augmentation yet significantly on the other side, it has just brought about excessive bureaucratization and inevitable alienation of the rulers from the ruled. Since the time independence was gained, those districts which were in a more backward state continued as before, the bridge between the rich and poor has broadened, individuals at the base level of the pyramid stayed at the outskirts of formative interaction, the administration held frontier characters and by and large advancement stayed much underneath the assumptions for individuals.[4]

IV. Limited Government-Features

1. Entrenchment

As per most theorists, one of the many crucial characteristics of a limited government is that the rules imposing sanctions on the state must be entrenched in some way or the other by law. Entrenchment not just facilitates a level of steadiness after some time, it is ostensibly a prerequisite of the actual possibility of a government that is constitutionally limited. Were an administration establishment entitled, at its pleasure, to change the actual terms of its constitutional limits, we may start to address whether there would, truly, be any such impediments.[5]

2. Writtenness

A few researchers accept that rules contained in the constitution don't exist until and unless they exist in some way or the other in a written document. Others contend that constitutions can be unwritten, and refer to, as the most popular example, the constitution of the United Kingdom. Despite the fact that the UK has no resemblance to that of the American Constitution and its Bill of Rights, it contains various written instruments which apparently structure a focal component of its constitution. Magna Carta (1215 A.D.) perhaps, is the earliest report of the British constitution, while others incorporate The Petition of Right (1628) and the Bill of Rights (1689).

V. Elements

Written constraints in the constitution, be that as it may, are not obliging without anyone else. Despots won't become altruistic rulers basically on the grounds that the constitution advises them to. To make preparations for infringement against the letter and soul of the constitution, there should be a bunch of institutional plans. Louis Henkin characterizes constitutionalism as comprising the accompanying components:

• government as per the constitution;
• division of force;
• the sovereignty of individuals and vote based government;
• protected survey;
• autonomous legal executive;
• limited government subject to a bill of individual rights;
• controlling the police;
• regular citizen control of the military; and
• no state power, or extremely limited and carefully delineated state power, to suspend the activity of certain pieces of, or the whole, constitution.

Extensively speaking, Henkin's nine components of constitutionalism can be isolated into two gatherings, one concerns power development and force dwelling; and different arrangements with rights assurance. These two gatherings of institutional game plans cooperate to guarantee the matchless quality of the constitution, the presence of limited at this point solid government, and the insurance of essential opportunity.

VI. Limited Government And Democracy

Totalitarian governments are unconstitutional by their core. Hence, these governments are bound to consider themselves above the people and law, and further see no point in implementing the idea of separation of power and limited government. These two ideas however are set on the idea of people's sovereignty, which is to be exercised – in a limited manner- by a government chosen by the masses. Thus, the only form of government that is representative and consensual in nature is modern-day democracy.

There is a very crucial link between democracy and constitutionalism. It is not necessary that mere constitutions make countries constitutional, similarly, fair elections and political parties don't make governments democratic. Hence, with the absence of genuine democracy, the limited government cannot thrive.[6]

VII. Apex Court Recognising Limited-Government

The Apex Court in the case of I.R. Coelho By LRs. v. State of Tamil Nadu and Ors.[7] took the view that the idea of a limited government is now a principle-driven by law which exercises its control over the Governmental power so that the government does not destroy the constitutional principles upon which it is established. Protection of fundamental rights falls within the scope of the above principle. Limited government implements the system of checks and balances and separation of powers, requiring a diffusion of powers and authorizing independent authorities for decision making. The safe-keeping of fundamental rights is the basic and most important feature of a limited government.

Furthermore, in the case of Rameshwar Prasad and Ors. v. Union of India and Anr.[8], it was held that "The constitutionalism or constitutional system of Government abhors absolutism – it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself." Constitutionalism is about limits and aspirations.

As observed by Chandrachud, CJ, in Minerva Mills Ltd. – "The Constitution is a precious heritage and, therefore, you cannot destroy its identity".

VIII. Criticism

Anarchist scholars have criticized the limited government in various ways. For instance, Murray Rothbard, who was instrumental in coining the term "anarcho-capitalism", was vocal in attacking the limited government, saying that constitutions are not capable of restraining the state and they do not work in furtherance of the protection of the fundamental rights of the citizens from the state. Jeremy Waldron was of the opinion that constitutionalism is more often than not, undemocratic and opined that the purpose of a constitution is not about restraining and limiting power, they are more about enabling and empowering the citizens of the state to control the sources of law.[9]

IX. Conclusion

In the United States of America, their constitution limits the powers of the government so that the government does not exceed its powers and perverse the legal setup. But, taking note from various examples of the past century, we can conclude that no constitution has the ability to enforce itself. Hence, it needs men as an instrument to interpret it. The idea of limited government is a major milestone in the protection of fundamental rights of individuals from autocratic governments.

The core character of the Constitution of India guarantees that the executive and legislative forces are restricted so that the power conferred to these organs is not converted into discretion and perversion. Corruption of political and administrative organs of the government is a sad reality of the Indian administration. Aspirations of people at the local level are increasing in an exponential manner and if they are fulfilled, the mounting frustrations are extremely dangerous for the functioning of the democratic system.

---

[1] M.P. Jain, "Indian Constitutional Law", 5th Ed, Wadhwa and Company Nagpur, 2006, p.5.

[2] Vol.9, Issue-02, icon.oxfordjournalas.org.

[3] Waluchow, W, "Constitutionalism", Sep 11.2012, Available Here

[4] Jeremy Waldron, "Constitutionalism-A Skeptical View", May 1, 2012, papers.ssrn.com.

[5] Anesh Kumar, "What are the important features of constitutionalism?", Sep 27, 2011, Available Here

[6] M.P. Jain, "Indian Constitutional Law", 5th Ed, Wadhwa and Company Nagpur, 2006, p.3.

[7] AIR 1999 SC 3197

[8] (2006) 2 SCC 1.

[9] Sandeep Agarwal, "Constitutionalism-Changing Paradigm", Sep 7, 2009

---

1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Law Aspirants – Ultimate Test Prep Destination