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Difference Between Constitutional Law And Constitutionalism

Difference Between Constitutional Law And Constitutionalism

The concepts of constitutional law and constitutionalism basically refer to the legal framework of a country. At a time when the constitution is referred to as ‘supreme law of land’; constitutional law is the study of rules, doctrines and principles related to the constitution; and constitutionalism is a system of governance under which the power of government is limited to rule of law.

As defined by Britannica, Constitutional law is the body of rules, doctrines and practices that govern the operation of political communities. It refers to rights carved out in the federal and state constitutions. This body of law is majorly developed from state and Supreme Court rulings along with the respective constitutions. In case of conflict between important functions of the state, the Supreme Court interpret their constitutions and come to a conclusion which ensures that the law passed by the legislature does not violate the Constitutional limits.

The term constitutional law is much more extensive in nature and includes the Constitution, judicial precedents, relevant statutory laws and conventions. Constitutional law outrights rights and powers of branches of the government at the central, state and local level and gives distinct responsibilities and functions to all three of them. It also defines the role, power and structure of different entities within the state namely, legislature, executive and judiciary. In countries like India, US, Singapore have their constitution defined in written form which consequentially means that the constitutional law of those countries is also subjective and can be ratified time to time, in case of need. Constitutional law regulates the government of a state and is the study of the set of rules which governs the relationship in a state between the ruler and the ruled.

Essentially, Constitutional law is the supreme law and all other laws have to conform to the Constitutional law, containing laws concerning the government and its people.

Whereas, Constitutionalism is a doctrine that means a government’s authority is determined by a body of laws or constitution. Although some jurists take constitutionalism as a synonym of limited government, some refer to it as efforts to prevent arbitrariness of government. It is majorly regarded as a system of governance in which the power of government is limited by law, checks and balances to reconcile with the individual and collective freedoms.

Constitutionalism has a variety of meanings, most generally referred to as “ a complex of ideas, attitudes and patterns of behaviour elaborating the principle that the authority of government derives from and is limited by a body of fundamental law”. It is basically meant as the limited government of limitation of government. It does both, recognises the need for a government with adequate powers and at the same time, places limitations on those powers to prevent arbitrariness.

The Supreme Court in I.R. Coelho v. State of Tamil Nadu[1], the Supreme Court regarded constitutionalism as a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. Also, in Rameshwar Prasad and Ors. v. Union of India and Anr.[2], the Supreme Court stated- “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.” 

Various elements of Constitutionalism are:

  • Written Constitution
  • Independent judiciary
  • Judicial review
  • Rule of law
  • Separation of powers
  • Fundamental rights
  • Federalism and many more.

Therefore, all the terms, constitution, Constitutional law and Constitutionalism are inter-related with each other with the linked idea of democracy and protection of rights of citizens through limited government. These concepts refer to a legal system of the country which grants collective rights and allows people to enjoy their freedom and promote the principle of “Rule of Law”.


[1] AIR 2007 SC 861

[2] (1994) 3 SCC 1

NSA and its practical application in Criminal Litigation

NSA and its practical application in Criminal Litigation


The NSA(National Security Act of 1980) was brought in by the Parliament of India in the year 1980. The Act provides for preventive detention in certain cases and matters connected therewith. The Act focuses on maintaining law and order in the country and provides for detention of individuals who try to impede the law and order situation of a state or country. The Act contains 18 sections and confers power on states and central government to detain any person in the presence of the following grounds:

  • Acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.

  • Regulating the continued presence of any foreigner in India or with a view to making arrangements for his expulsion from India.

  • Preventing them from acting in any manner prejudicial to the:

  • Security of the State;

  • Maintenance of the public order; and 

  • Maintenance of supplies and services essential to the community it is necessary to do so.


Application in Criminal Litigation

The usage of the act has made it contentious when criminal law comes into the picture. Consequently, it criminal litigation cannot be impervious to it.  When a person is arrested normally, he or she has certain basic rights. Such rights include the right to be informed of the reason for arrest and the right to bail. These rights are ensured by the various laws functioning in the country. Section 50 of the Criminal Procedure Code (Cr. PC) provides that an arrested person has the right to be informed of the grounds of such arrest, and the right to bail. Likewise, Section 56 and 76 of the Cr. PC also enumerates that an arrested person shall be produced before a court within 24 hours of arrest. Furthermore, Article 22(1) of the Constitution of India guarantees that an arrested person cannot be denied the right to consult and to be defended by a lawyer of his choice.

However, such basic rights are not available to a person who has been detained under the provisions of NSA. A person has no right to know about the grounds of his detention for up to 5 days and in certain circumstances, not later than 10 days. While providing the reason for arrest, the government has the power to reserve information which it thinks would go against the public interest if disclosed. The arrested person has no right to seek the aid of any lawyer in any matter concerned with the proceedings before an Advisory Board, which has been constituted by the government to deal with the NSA cases.  This is convenient for the government and police because it allows them to escape the strictures of the Criminal Procedure Code and the courts of the land. In this manner, the rights of citizens with respect to the pre-trial process are stripped which, will equally afflict lawyers. 







There is a divergence of opinion on the question as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law. International Law has developed in a form which is different from that of Municipal Law. The relation has been categorized traditionally been characterized from monist or dualist perspective.


International Law

According to the Black’s Law Dictionary

“International Law” is defined as: “The legal system governing the relationship between nations; more modernly the Law of International relations  embracing  not only nations but also such participants as  International organizations and individuals (such as those who invoke their human rights or commit war crimes)”

International law is the set of rules generally regarded and accepted as binding in relations between states and nations. It differs from national legal systems in that it only concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform.

The term "international law" can refer to three distinct legal disciplines:

  1. which jurisdiction may hear a case, and
  2. the law concerning which jurisdiction applies to the issues in the case.
  • Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.

The two traditional branches of the field are:

  • Jus gentium  : is the body of treaties, U.N. conventions, and other international agreements [law of nations] – Law is common to all nations
  • Jus inter gentes: agreements between nations

Municipal Law

According to the Black’s Law Dictionary

“Municipal Law” is defined as: “The ordinances and other laws applicable within a city, town or other local government entity”.

Basically, Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels. While, as far as the law of the state is concerned, these may be distinct categories of law, international law is largely uninterested in this distinction and treats them all as one. Similarly, international law makes no distinction between the ordinary law of the state and its constitutional law.


Article 27 of the Vienna Convention on the Law of Treaties provides that, where a treaty conflicts with a state's municipal law (including the state's constitution), the state is still obliged to meet its obligations under the treaty. The only exception to this rule is provided by Article 46 of the Vienna Convention, where a state's expression of consent to be bound by a treaty was a manifest violation of a "rule of its internal law of fundamental importance.”


Relationship between International and Municipal Law

It is important to understand how international law principles become part of domestic law, and to explain what happens if the rules conflict. The theories of monism and dualism are the two main theories that explain the relationship between international and municipal law.


  • Monism

In this theory, all law is part of a universal legal order and regulates the conduct of the individual State. The difference in the international sphere is that the consequences are generally attributed to the State. Since all law is part of the same legal order, international law is automatically incorporated into the domestic legal order. Some monist theorists consider that international law prevails over domestic law if they are in conflict; others, that conflicting domestic law has some operation within the domestic legal system.


  • Dualism

This theory holds that international law and domestic law are separate bodies of law, operating independently of each other. Under dualism, rules and principles of international law cannot operate directly in domestic law, and must be transformed or incorporated into domestic law before they can affect individual rights and obligations.

The main differences between international and domestic law are thought to be the sources of law, its subjects, and subject matter. International law derives from the collective will of States, its subjects are the States themselves, and its subject matter is the relations between States. Domestic law derives from the will of the sovereign or the State, its subjects are the individuals within the State, and its subject matter is the relations of individuals with each other and with government.


  • Harmonisation

Neither monism nor dualism can adequately explain the relationship between international and domestic law, and alternative theories have developed which regard international law as having a harmonisation role. If there is a conflict, domestic law is applied within the domestic legal system, leaving the State responsible at the international level for any breach of its international law obligations.


Position of International Law with the Constitution framework of India

The drafters of the Indian Constitution have been extremely vague in defining the status of international law in the municipal sphere. Our Constitution provides little guidance as to the relationship between international law and municipal law. This ambiguity looms large in the absence of any debate in the Constitutional Assembly on the subject and the studied silence of Constitutional pundits.

The primary issue is whether our Constitution makes a mere textual disposition of the relationship of International Law and Municipal Law. Apart from the express provisions of the Constitution, we also need to rely on actual State practice. Article 51(C)[1] (which falls within the realm of the Directive Principles that are non-justifiable in character) of the Constitution specifically mentions International Law and imposes a duty on the state to respect it. But the jurisdiction of the court to enforce them in the domestic arena has been limited by virtue of Article 37. In this backdrop, it is interesting to take note of 'The Regulating Act of 1873', which directed all Courts in India to act in accordance with "equity, justice and good conscience". On the basis of this principle, Common Law rules were transplanted into the Indian Municipal Law. It seems that India has barely deviated from its preconstitutional position in the matters of basic canons governing the principles of International law and Municipal Law.

It is a well-established principle that constitutional conventions may also breathe through legislative or constitutional enactments;[2] So, the common law rules automatically became unwritten Constitutional law of a supplementary character. It is an important principle of Constitutional interpretation that every provision of the Constitution must be given effect to. Therefore, these rules continue to be in force in the Indian legal setting by virtue of Article 225 and 37 of the Constitution of India. These provisions are based on the universally recognised principle that law once established, continues until changed by some competent legislative power. The Indian Independence Act, 1947 also incorporated the same principles under section 18(3). Therefore, such practices will be of binding nature in International Law as well as in the Municipal sphere. Hence under Article 372 of the Constitution such practices will have the force of law and India will be bound to observe the same. A composite reading of the Articles 51(c),253 and 372 suggest that India has not deviated from the common law position. Therefore, India will have the same legal practice of treating customary International Law as part of the law of the land provided that it is not inconsistent with the existing statutory provisions and the national charter.

Regarding treaties they have to be transformed into enabling legislation. In the Indian context, the ratification of a treaty doesn't ipso facto transform it into domestic law. The nonobstante clause under Article 253 of the Constitution bestows on the Parliament exclusive competence to legislate upon the treaties entered into by the Government of India.

However, Dr. P.C. Rao aptly cautions that by virtue of Article 73, "The executive power extends to all transactions which bring the Union into the relation with any foreign country or other international person". Accordingly, when there is a controlling executive; recourse cannot be had to principles of Customary International Law. Nor can such principles override the case law.

Supreme Court has held in several cases such as Vishakha vs. State of Rajasthan, Randhir vs. Union of India, Unnikrishnan vs. State of Karnataka, that domestic laws of India, including the constitution are not to be read as derogatory to International law. An effort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. At the same time, the constitution is still the supreme law of the land and in case of any directly conflict the constitution will prevail.

The above inspection of the Constitutional provisions amply clarifies the status of international law in the domestic field.


There are mainly two theories- monistic and dualistic which are used to study the relationship between the internal and international law. Monistic theory is based on natural law which suggests that internal law as well as international law is a part of the same law and there is no need for separation between them. But the dualistic theory which is based on positive law says that domestic law and international law are separate entities. The nation state need not obey international law unless it accepts to do so. Though both theories has its own place in international law, few countries in this world follow pure dualism or monism. The countries follow international law when it is in their favour and do not follow when it is not. This is what we can see in the international scenario.


[1] Article 51 of the Constitution corresponds to (I) Article 29 of the Constitution of Eire, 1937; (II) Article 28,29,30 of the USSR, 1977 and (III) Article VI Cl. (2) of the Constitution of the United States. Apart from this it has close similarity to some of the International Charters and Covenants such as (a) Article 28, 29 of the Universal Declaration of the human Rights, 1948; (II) Articles 1 and 2 of the International Covenant on Economic, Economic, Social and Cultural Rights 1966; And (III) Articles 1, 4 and 22 of the International Covenant Civil and Political Rights, 1966.

[2] Supreme Court on Record Advocate Association v. Union of India, (1993) 4 SCC 441 1993 Indlaw SC 494.

Defamation: Types and Legality

Defamation: Types and Legality


Defamation is a process of lowering the reputation of any person. It can be done either in oral or in writing in the form. When it is done in written form then it is called libel and when it is done oral form then it is termed as slander. The defamation is basically publication of false statements against the claimant without his consent with the intention to lower his reputation. It is considered as an offense because it causes damages to the claimant in the form of lowering social or political reputation. Which results in financial and economical loss to the claimant.

The basic elements of defamation are-

-The statement should be published.

- The statement should be false.

-The statement should refer to the claimant.

Categories of defamation in India-

  1. Criminal defamation
  2. Civil defamation


a)Criminal defamation is dealt with under section 499- 500 of Indian Penal Code (IPC) Any person who is charged for defamation under criminal law should be charged for punishment along with damages. The punishment for defamation under criminal law is imprisonment for 2 years or more with or without fine

According to IPC crime defamation will take place when any person publishes any statement with the intention to lower the reputation of the claimant and the statement published is false. The statement should refer to the claimant only during this situation the plaintiff can institute a case of defamation against the defendant.

R Naik Vs Union of India[1]

In this case section, 499 and 500 of IPC were challenged by the plaintiff for criminal defamation. The validity of section 499 and 500 became academic in this case.


b) Civil defamation is dealt under tort law as a general rule it only focuses on libel that is the written defamation statement and does not focus on slander that is the oral defamation statement. In order to prove that the statement libelous. The claimant has to prove that-

-The statements are false.

-The statements are written.

-The statements are defamatory.

-The statements are published.

Ram Jethlalmana vs Subramyam Swami[2]

In this case, the court held that the statement made by the defendant was irrelevant. The aim was to destroy the image of the person. The defendant made the statement with the intention to lose the reputation by linking his name with the corrupt company. The statement ruins the social and political republican of the plaintiff. The plaintiff was awarded 5 Lakhs by the defendant.



From the above two cases, we can say in India defamation is both tort and crime. In the case of tort civil laws are applied. Where punishment is not given only damages are given. And in the case of Crime criminal laws are applied and along with damages, punishment is also given. In criminal law, defamation is considered as a bailable offense.


















[1]R.Naik Vs Union of India 1994 AIR1558

[2]Ram Jethmalani Vs Subramyam Swami AIR 2006,Delhi 300,126 DLT 535




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