Independence Day Reflections: Constitutional Values-Quest For Excellence
As we celebrate the 80th Independence Day and enter the ninth decade as a free democratic republic, it is appropriate to reflect and introspect. Asked about his achievement after the French Revolution, Emmanuel Joseph Sieyès, commonly known as Abbé Sieyès, said. 'I survived'. We have survived as a free, unified nation. Never before and nowhere else has more than one-sixth of the human race lived as one nation under conditions of freedom.
We can be legitimately proud of this achievement. But we cannot rest on our laurels. Eternal vigilance is the price of liberty. No office in the land is more important than that of being a citizen. Constitutional values and ideas seem to be under stress. All progress has to be within the democratic framework attuned to constitutional values and limitations and democratic principles. Sometimes we seem to have a skewed understanding of these concepts. A proper appreciation and internalization of those values which are reflected in the Preamble would serve as a beacon.
'Democratic' is comprehensive in character. In a narrow political sense it connotes only the form of government- a representative and responsible system under which those who rule or administer are chosen by the electorate and are accountable to them. In the broader sense, 'democracy' would take in not only political democracy, but also social and economic. It is in that broad sense that the term is used in the Preamble. Further, democracy is not majoritarianism. It has wider moral implications. It is founded on the principle that each individual has equal value. Pluralism is the soul of democracy. India is such a typical pluralist society-a model of unity in the mosaic of diversities. What is important is that in our pluralistic society the diversities are not to be submerged and the different identities lost, but they have to be blended to have the greater identity of India. Constitutional democracy is one where the majority will is directed and controlled by constitutional principles. 'Republic' signifies an elected head of the State. Under a republican form of government, the head of the State, single or collective, is always elected for a prescribed period.
'Socialist' and 'secular' added to the Preamble only made explicit what was the underlying theme of the Constitution.
'Socialist' tended to give the Constitution an ideological slant. But the socio-economic revolution and ushering in an egalitarian society were always high on the nation's agenda. That is also in keeping with the Directive Principles (in particular Art 39) which emphasise and aim at securing the socialist goals: Equitable distribution of wealth and resources and non-concentration of wealth and means of production to subserve the common good. Wealth has a social mission. It must find expression and fulfillment in human well-being with a sensible balance between economic growth and advancement of the welfare of society as a whole.
An individual is sacrosanct and not a cog in the wheel, yet he is not an island but part of a continent, the society or community as a whole of which he is a part. His income and assets belong not exclusively to him alone but need to be shared with the community too. This is what Mahatma Gandhi also envisaged and enunciated. That is the theory behind payment of taxes also. The passing observation of Marshall, CJ in McCulloch v Maryland [1] that the power to tax involves the power to destroy was given its intellectual coup de grace with one pithy sentence of Holmes, J in Panhandle Oil Co. v Mississippi ex rel Knox [2]: The power to tax is not the power to destroy while this Court sits. He also observed, 'I pay my taxes and with that I buy civilization.'
Will Hutton perceptively brings out in The World We're In the difference of the understanding of the Bible and the outlook in the US and Europe, the European and American concepts and philosophies yielding different results. In America it is all individual-centric, the most basic practical right is that everyone should be given a chance, an opportunity; and a fair society is one which promotes opportunity for all but is indifferent to and unconcerned with the prior or consequential distribution of risk and rewards. It is a very materialistic attitude: that every person has a right to be happy, that property is owned by, and is for, oneself. In Europe there is the recognition that individuals are part of the community and their earnings are to be shared with others. The European value is that property is owned in trust for the society to which one owes reciprocal obligations and duties. Their notion of a fair society comprehends a larger integrative role for the State as actively conciliating social partner providing public services and regulating business and society thus ensuring that risk and rewards are fairly distributed in what John Rawls characterizes as an infrastructure of justice.
'Secular' in our context is not anti-God or anti-religion. It is equal respect for all religions; and that the State does not support or aid any religion. The whole thrust of our Constitution has always been that with the right to freedom of religion being guaranteed. It facilitates everyone to enjoy religious freedom.
The Constitution speaks of Justice- social, economic and political. It is concerned with securing justice to all citizens. Justice is the greatest interest of man on earth, the ligament which keeps civilized beings and civilized nations together and cements the fabric of a secure society. Justice is concerned with the adjustment of human relations. Distributive justice is concerned with the distribution of goods in society based on relative claims of individuals. The justice provisions in Part IV are fundamental to the governance of the country and underlie all human development. Peace is the fruit of justice. The hallmark of a society claiming to be civilized is its ability to do justice. Justice implies a 'harmonizing reconciliation of individual conduct with the general welfare of society'. The essence of justice is the attainment of common good. Equality of opportunity is the soul of social equality and social justice and is perhaps the most important foundation that supports the democratic polity. One cannot hope to enjoy one's rights individually if others are not treated equally. Economic and social inequalities rupture the fabric of civil society. Political justice is the healthy maintenance of the checks and balances in the constitutional scheme and the legitimacy of democratic institutions. When justice is denied, expectations may darken into depression and engender despair, rebellion and anarchy.
Liberty has been equally yearned for by humankind. This is again very high in the scale of constitutional values. It has proved most conducive to the flowering of the human spirit. It has been the most humanizing and civilizing force in the crowded story of man. It is under conditions of freedom that you can have the full blossoming of the human personality and all that is good and enduring in life. The Constitution aims at securing liberty of thought, expression, belief, faith and worship, each of which is important for an individual. Liberty is used not merely in a negative sense but also in a positive sense. It is not only absence of arbitrary restraint on the freedom of individual action but also creation of conditions which provide the essential ingredients necessary for the fullest development of the personality.
Equality is the other value/objective which the Constitution endeavours to secure. Liberty and equality are complementary. It is not wooden equality. It means equality of status- the status of free individuals, and equality of opportunity. This implies the availability of opportunity for everyone to develop his full potential. Equality really is providing equal opportunities. An unequal society is a threat to peace and stability. To recall the perceptive observation of Marshall, CJ: “In democracies which all the world confirms to be the most perfect work of political wisdom, equality is the pivot on which the grand machine turns…. Equality demands that he who has a surplus of anything in general demand should parcel it out among his needy fellow citizens.”
Fraternity is the final objective enumerated in the Preamble, fraternity assuring the dignity of the individual and the unity and integrity of the nation. As the Supreme Court said quoting Dr. Ambedkar, “...Fraternity means a sense of common brotherhood of all Indians. In a country like ours with so many disruptive forces of regionalism, linguism and communalism, it is necessary to emphasize and re-emphasize that the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one common citizenship and every citizen should feel that he is Indian first irrespective of other basis.” It is this feeling of oneness and brotherhood which has to be fostered and which the Preamble refers to.
'Fraternity' was added in the Preamble because it was felt “that the need for fraternal concord and goodwill in India was never greater than now and that the particular aim of the Constitution should be emphasized by specific reference in the Preamble.” That relevance is as much, if not more, now. Fraternity is a political and social and even more a moral objective. That idea underpins the whole Constitution though it is not expressly reflected in any provision. It implies a spirit of brotherhood, a feeling of oneness and a sense of tolerance which Dr. Radhakrishnan remarked is the homage that the finite mind pays to the inexhaustibility of the infinite. There are constitutional underpinnings that promote and nurture a concordial society.
We must be imbued with our constitutional values and ideals. There are two fundamental ideas underlying the Constitution: The value of liberty- the idea that will and not force is the basis of government; and the value of justice- that right and not might is the basis of all political societies and of every system of political order.
Tolerance of the beliefs, views and practices of others is imperative for a harmonious living and a concordial society. The importance of tolerance, respect for another view and accommodation which are indeed the hallmarks of Indian thought and civilization cannot be over-stated. Fundamentalism is the triumph of the letter over the spirit. Human personality can bloom fully and humanism can take deep roots and have its efflorescence only in a climate where all display an attitude of tolerance and a spirit of moderation which Learned Hand defined as " the temper which does not press a partisan advantage to its bitter end; it can understand and appreciate the other side and feels an unity between all citizens." This is in contradistinction to the spirit of fanaticism which, according to George Santayana, consists in "redoubling your effort when you have forgotten your aim."
An unfailing index to the maturity of a democracy is the degree of its respect for the unwritten conventions. The constitutional equilibrium can be preserved only by Obedience to the Unenforceable, both by the citizens and the government. All have to aim at and strive towards fulfilling this so as to be enlightened citizens seeking excellence.
Values are eternal, they know of no reduction below themselves. This suggests that certain fundamental values, like truth, goodness and beauty, are inherent and unchanging. They are not subject to time, circumstance or personal opinion. It is these values which must guide and inform all our thoughts, words and deeds. Of Truth and Justice, Anatole France said, “Truth possesses within herself a penetrating force unknown alike to error and falsehood. I say truth and you must understand my meaning. For the beautiful words Truth and Justice need not be defined in order to be understood in their true sense. They bear within them a shining beauty and a heavenly light.”
In today's setting all this may not be easily attainable and our path is strewn with difficulties, yet the attainment of such ideals should be the goal, however remote or difficult. Never give a quarter. When once we compromise on something then there is no end to which it may go. When we call something a necessary evil, it begins to look more and more necessary and less and less evil.
We need to build national character and acquire a keener sense of national identity. National character is the sum total of individual characters. To strive for individual excellence is within our reach and that we should do unreservedly. We can have no better wish than this on the occasion of Independence Day. And August 15 may be celebrated not only as Independence Day, but also, as Palkhivala once perceptively put it, 'the Day of Interdependence- the dependence of the States upon one another, the dependence of our numerous communities upon one another, the dependence of the many castes and clans upon one another- in the sure knowledge that we are one nation.'
It is essential that we, both the State and the people, are imbued with these ideals and values and constrained by the constitutional limitations so that constitutional democracy and the rule of law survive and flourish in our land long after all of us are gone and the raucous voices of today are lost in the silence of the centuries. Rabbi Hillel's words over 2000 years ago: “If not now, when? If not we, who?” come home with a strange poignancy. Each one of us does matter and has to contribute to the endeavour. Edmund Burke proclaimed long ago, “Nobody makes a greater mistake than he who does nothing because he could do only a little.”