Constitution & Constitutionalism: The Making Of Our Constitution- A Precious Heritage

V. Sudhish Pai

26 Nov 2021 11:37 AM GMT

  • Constitution & Constitutionalism: The Making Of Our Constitution- A Precious Heritage

    Man's capacity for justice and adherence to the rule of law makes democracy possible, man's inclination to injustice makes democracy necessary. The advent of democracy and limited government heralded the concept of 'State' and transformed the status of the governed to citizens. Civilization involves the subjection of force to reason and the agency of this subjection is the law. Law eludes...

    Man's capacity for justice and adherence to the rule of law makes democracy possible, man's inclination to injustice makes democracy necessary. The advent of democracy and limited government heralded the concept of 'State' and transformed the status of the governed to citizens. Civilization involves the subjection of force to reason and the agency of this subjection is the law. Law eludes a precise definition. Law may be said to embody a code of conduct and self-discipline which a nation speaking through its representatives-the legislature adopts for itself and enforces through the machinery of the judiciary. Law, and even more, constitutional law, is the means of ordering the life of a nation and its people and the relations between man and man and man and State.

    Law is broadly divided into private law and public law. Private law deals exclusively with the rights and obligations as between individuals. Public law concerns and deals with the organization and powers of the State in relation to the organs of the State inter se or as between the State and the individual. Constitutional law is a part or branch of public law because it deals with the State, its different organs and their relations inter se as well as relations between the State and the citizens.

    The aspiration to make power impersonal and its exercise accountable has been the motivation for constitutions and constitutionalism. Constitutionalism is an attempt to establish the supremacy of law –its essence is the submission of politics to law. Men throughout history have longed for a higher standard by which their own man made laws are tested. Constitutions are that higher standard. The belief that individuals have natural rights— inherent and inalienable—which are anterior to any written instrument like a Constitution, that government acquires its authority from the people, and that the purpose of government is to promote common good is what conceives and conceptualizes a Constitution made in the name of the people, defining the powers of the main institutions and delineating the relationship between various organs of government and between the government and the citizens. It is framed for ages to come and designed to approach immortality as nearly as human institutions can.

    'Constitution' refers to the document –the Constitution of India or of the USA while 'Constitutional law' refers to the justiciable parts of the document and those rules which have been evolved by courts in enforcing those justiciable provisions. Conventions, customs, usages are all part of Constitutional law. Courts in interpreting the Constitution try to discover the intention behind it and thus enlarge or transform the words of the written Constitution. A 'constitutional state' is one in which the powers of the government, the rights of the governed and the relations between the two are adjusted. The term 'constitutional law' anticipates the term 'constitution' which in turn brings in 'state' to which the constitution relates.

    A constitution is the very life breath of a nation and the vehicle for its progress. It is the country's supreme law- suprema lex. A constitution is about division, distribution and management of State power so as to prevent arbitrariness and establish accountability to law. It is a framework of political society organized through and by law, in which law has established permanent institutions with recognized functions and definite powers.

    All states with some constitution or the other purport to govern for the welfare of the people. What distinguishes a democratic state from a totalitarian one is that a free democratic state respects certain basic human rights and endeavours to achieve its objectives through the discipline of fundamental freedoms. That is what constitutional government really signifies.

    The mere existence of a constitution does not, by itself, ensure constitutionalism or constitutional culture. Constitutionalism is essentially limited government under a fundamental law. It signifies that the exercise of governmental power should be controlled to ensure that it does not destroy the very democratic values which it is intended to promote. It emphasizes that institutional arrangements must provide for effective control of the abuse of power. Absolute power must be avoided by a diffusion of authority which introduces checks and balances in a democratic system. A politically neutral civil service, an independent police force, an independent academic and practising legal profession, a free press reflecting diverse points of view, and, of course, an independent judiciary are essential concomitants of constitutionalism which is adherence to constitutional principles.

    The aim of good government is to bring about the security, welfare and happiness of the people. Of the different forms of government, democratic government with a bill of rights comes closest to the ideal for the attainment of these objectives.

    The objectives of a written constitution in a democracy are broadly threefold: to establish the framework or structure of government; to delegate or assign powers to the various organs of the government; and to restrain the exercise of those powers in order to preserve individual rights. Constitutions provide the means to guard against the States' capacity for invading the liberties available and guaranteed to all civilized people. A modern constitution empowers citizens and also controls and disciplines power. By defining competences and entrenching rights the constitution limits powers and protects liberties. It unfolds a vision and a goal and charts a nuanced path for its realization.

    A constitution, it is said, embodies and expresses the goals and aspirations of the people depending upon the history of that society. It contains certain core political values and beliefs which cannot be tinkered with by transient public opinion. The limitations imposed by constitutional law on the actions of government are essential for the preservation of public and private rights, notwithstanding even the representative character of political institutions. The creation of constitutional government, says Raymond Moley, is the most significant mark of distrust of human beings in human nature. It signalizes a profound conviction, born of experience, that human beings vested with authority, must be restrained by something more potent than their own discretion.

    The Constitution of India is one of the most comprehensive and well drafted in spite of its elephantine size. Our Constitution represents a summit of consensus in India's political history. It manifests the best in our past traditions, it provides a considered response to the needs and aspirations of the present and possesses sufficient flexibility to handle and weather the requirements of the future. It is an instrument drawn with such meticulous care by a remarkably wise, articulate and erudite pantheon of persons of outstanding abilities and backgrounds who so well understood how to make language fit their thought and vision. The Assembly was composed of persons of the highest calibre drawn from different sections of society and representing various shades of opinion. The debates and discussions were of a very high order and profound, not marred by any narrow ideas or viewpoints. The deliberations reveal a very high level of political acumen and standard of debate. The presence and participation of such a vast, inclusive cross section of the society imparted a non-partisan character to the deliberations, enhanced the Assembly's authority and facilitated the general acceptability of the Constitution.

    The Assembly accommodated diverse points of view, debated with an open mind, considered and reconsidered ideas and proposals, reviewed and evaluated comparative experiences on the working of similar provisions and institutions in other countries, looked at the constitutional canvas in a futuristic perspective, aware of India's political history, culture, socio-economic dreams and objectives, judicial- legal attitudes and principles, conscious of India's wellsprings of strengths and recesses of weaknesses and helped to raise a magnificent temple of liberty based on the import of unity in the mosaic of diversities and forward looking national self-confidence. Accommodation and concord characterize and underpin our Constitution.

    The Constituent Assembly met for the first time 75 years ago on December 9, 1946. This year is the platinum jubilee of that occasion. The deliberations continued till November 26, 1949 when the Constitution was adopted. The Assembly's sittings were spread over 1084 days- 2 years, 11 months, 17 days. It held 11 sessions covering 165 days of which 114 days were devoted to the consideration of the draft Constitution. The cost of the whole venture was Rs. 63, 96, 729/-. Not less than 53000 visitors were admitted to the Visitors' Gallery when the Constitution was under consideration. It is appropriate to recall all this and the founding fathers and their contribution and remind ourselves of certain fundamentals.

    The inaugural session was presided over by Dr. Sachchidananda Sinha as provisional Chairman. He was an eminent legal scholar as also a consummate advocate. Incidentally it was his 150th birth anniversary a couple of weeks earlier-10.11.2021. He delivered an excellent inaugural address affirming his faith in the immortal destiny of India. In his inaugural address he quoted the memorable words of Joseph Story, a great jurist and former judge of the US Supreme Court: "The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful as well as useful; its arrangements are full of wisdom and order; and its defences are impregnable from without. It has been reared for immortality, if the works of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created ….by the virtue, public spirit and intelligence of the citizens. They fall when the wise are banished from the public councils because they dare to be honest, and the profligate are rewarded because they flatter the people in order to betray them." This is truly prophetic. Story had also insightfully observed, "It depends upon the present age, whether the national constitution shall descend to our children in its masculine majesty, to protect and unite the country; or whether, shorn of its strength, it shall become an idle mockery, and perish before the grave has closed upon the last of its illustrious founders." He concluded with an apt Biblical quotation: Where there is no vision the people will perish.

    Dr. Rajendra Prasad was elected Chairman of the Constituent Assembly on December 11, 1946. The post was later designated as President. The Aims and Objectives Resolution drafted by Pt. Jawaharlal Nehru and moved by him on December 13, 1946 articulated the basic values of the Constitution to be drafted. Adopted on January 22, 1947, after a full fledged debate and discussion this resolution was the basis and inspiration for the Constitution.

    On August 29, 1947 the Constituent Assembly appointed the Drafting Committee to draft the Constitution. At the first meeting on August 30, 1947 Dr. B.R.Ambedkar was elected Chairman. The other members of the Committee were Alladi Krishnaswami Ayyar, N.Gopalaswami Ayyangar, K.M.Munshi, B.L.Mitter, D.P.Khaitan, Mohammad Sadulla. On Khaitan's demise, his place was taken by T.T.Krishnamachari. N.Madhava Rau replaced Mitter who resigned due to ill-health. The basic task of fashioning the Constitution was of this Committee. The Drafting Committee and the Constituent Assembly were ably assisted by the Assembly's Secretariat. Two names, however, stand out and deserve special mention and compel our admiration and gratitude. Those heroes remain largely forgotten. It is necessary that we remember and honour them.

    Sir Benegal Narsing Rau was the Constitutional Adviser to the Constituent Assembly and brought to his work his brilliance and rich experience. He prepared the first draft which was the basis for discussion. That draft had marginal notes of reference to the different Constitutions. B.N.Rau travelled to various countries and held personal discussions with leading constitutional authorities there. B.N. Rau's role in the making of the Constitution is seminal. Justice Frankfurter was so impressed with him that he remarked, "If the President of the USA were to ask me to recommend a judge of our Supreme Court on the strength of his knowledge of the history and working of the American Constitution, B.N.Rau would be the first on my list." Indeed, great praise from high authority and very well deserved. It is necessary to refer to the tributes paid to him by Dr. Ambedkar, regarded as the father of the Constitution and Dr. Rajendra Prasad, the President of the Constituent Assembly at the conclusion of the making of the Constitution. Dr. Ambedkar said, "The credit belongs partly to Sir B.N.Rau, the Constitutional Adviser to the Constituent Assembly who prepared a rough draft of the Constitution for the consideration of the Constituent Assembly." Dr. Rajendra Prasad said that Rau 'was the person who visualized the plan and laid the foundation of our Constitution'. "I must convey my own thanks and that of the House to our Constitutional Adviser Shri B.N.Rau who worked honorarily all the time that he was here, assisting the Assembly not only with his knowledge and erudition but also enabled the other members to perform their duties with thoroughness and intelligence by supplying them with the material on which they could work."

    The other person who shines in the galaxy and to whom the nation owes a deep debt of gratitude is Surendra Nath Mukherjee. S.N.Mukherjee was the Joint Secretary, Constituent Assembly and the chief draftsman of the Constitution. It was he who meticulously drafted the various provisions of the Constitution that was finally adopted. Paying tribute to him in the Constituent Assembly on November 25, 1949, Dr. Ambedkar said, "Much greater share of the credit must go to Mr. S.N.Mukherjee, the chief draftsman of the Constitution. His ability to put the most intricate proposals in the simplest and clearest legal form can rarely be equalled, nor his capacity for hard work. He has been an acquisition to the Assembly. Without his help the Assembly would have taken many more years to finalise the Constitution." Very high encomium and richly merited and earned. President Rajendra Prasad said on November 26, 1949: "Tribute has been justly paid to Shri S.N.Mukherjee who has proved of such invaluable help to the Drafting Committee." In a comprehensive analysis of the Constitution Mukherjee wrote, "It is true that many of the provisions in the Indian Constitution are in other Constitutions left to be dealt with by common law, but the reasons for such detailed provisions will be apparent if one only remembers the vastness of the country, the diversities of its population and the varieties of interests therein requiring safeguards." Mukherjee's place among the front rankers in the making of our Constitution is secure.

    The original draft Constitution prepared by B.N.Rau and the Secretariat containing 243 articles and 13 schedules was ready by October 7, 1947. From October 27, 1947 the Drafting Committee sat daily scrutinizing each clause of the Draft until its own revised text with 315 articles and 7 schedules was ready in February, 1948. Wide publicity was given for the proposals and comments sought. The Constituent Assembly began clause by clause consideration of the Draft on November 15, 1948 and concluded on October 17, 1949. At the end of the consideration stage there were 386 articles. There were 7635 amendments of which 2473 were moved. On November 26, 1949 the Constitution as finally approved by the Assembly was adopted with all fervour and enthusiasm. It contained 395 articles and 8 schedules. Some of the provisions came into effect that day itself. November 26 is now celebrated as Constitution Day. The vast majority of the provisions of the Constitution came into force on January 26, 1950-Republic Day. The Indian Independence Act, 1947 passed by the British Parliament was repealed underscoring the idea of the Constitution being wholly Indian.

    This then is the saga of the framing of our Constitution which according to Granville Austin was 'the greatest political venture since that originated in Philadelphia in 1781'.

    It has been rightly remarked by Prof. Upendra Baxi that we live in an era of massacre of ancestors which is now considered a public virtue and a sign of progress. But collective amnesia of what happened in the past is not an estimable value. Without living in the past its recall is important for it necessarily presages a future. We cannot forget or overlook the enduring relevance of the past or its torch bearers. It is in that spirit that we pay homage to the founding fathers.

    Our Constitution has, undoubtedly, drawn from many sources, it is a happy blend of many strains. But there is nothing wrong in borrowing, in adopting ideas and adapting them. As Dr. Ambedkar said, "There is nothing to be ashamed of in borrowing, it involves no plagiarism. Nobody holds a patent right on the fundamental ideas of the Constitution." As Voltaire put it profoundly, "Originality is nothing but judicious imitation. The most original writers have always borrowed one from the other."

    The Constitution of India has established a sovereign, socialist, secular, democratic republic. It represents a charter of power granted by liberties and not a charter of liberty granted by power. Apart from providing a broad framework of government, it endeavours to protect liberties and secure justice. That is the constitutional vision and goal. The Constitution is not just a legal document, it is first a social testament as also a political instrument. It may be said to provide for stability without stagnation and growth without destruction of essential values. A majority of the provisions are aimed at furthering the goals of the social revolution. The core of this commitment lies in Parts III & IV which together with Part IVA and the Preamble may be said to be the conscience of the Constitution; the judiciary is the conscience keeper. The Constitution's greatest gift has been an open society. The individual lies at the core of the constitutional focus and the ideals envisioned in the Preamble animate the vision of securing for him a dignified existence.

    The Constitution has adopted a parliamentary system of government. It has set up a broad federal structure which is resilient enough to adjust according to the exigencies. There is a division of powers not only among the three wings but also between the Centre and the States. None of the wings or units has a monopoly of wisdom and in the pattern of functional distribution of State power there is hardly any room for real supremacy. Limited government and judicial review constitute the essence of our constitutional system. It involves three main elements: (i) a written Constitution setting up and limiting the various organs of Government; (ii) the Constitution functioning as a superior law or standard by which the conduct of all organs of government is to be judged; (iii) a sanction by means of which any violation of the superior law by any of the organs of government may be prevented or restrained and, if necessary, annulled. This sanction, in the modern constitutional world, is 'judicial review' which means that a court of competent jurisdiction has the power to invalidate the act of any governmental agency, including the legislature on the ground that it is repugnant to the Constitution. Verily, the structure of the government under our constitutional scheme is so designed that each branch is a sentinel on the qui vive against the other two, lest they become too powerful or autocratic. The Court's fidelity to the Constitution secures its own subordination, though it has the last word in the interpretation of the Constitution and it is the final judge of all acts purported to be done under the authority of the Constitution. But fidelity and creativity are not necessarily opposed, with devoted insight they may enhance each other.

    This then is our Constitution which is described as 'a precious heritage' by Chandrachud, CJ in Minerva Mills. It has been described as a sublime Constitution by Mahajan, CJ.

    The Indian Constitution was not written on a 'tabula rasa'. The constitutional experiments in India may be said to be a saga of statesmanship, hope and faith. There were sublime moments in this task. There were also times of anguish, distrust, travails and turmoils. But the overall response of the Indian State to the democratic aspirations of the people and the urges of Indian nationalism has been one of great satisfaction.

    We should constantly bear in mind the insightful words of Dr. Rajendra Prasad in his concluding speech in the Constituent Assembly that, "India needs today nothing more than a set of honest men who will have the interest of the country before them…. If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country." Our failures, if any, and there are, are attributable not to the Constitution, but it is because in Dr. Ambedkar's memorable words, "Man is vile."

    Every country, as aptly observed by the Earl of Birkenhead, has to work out its constitutional salvation according to its specific needs and problems through the chosen system of its political organization. No Constitution, however, noble its ideals or lofty its exhortations is self executing. It needs the support of ancillary legal systems of both common law and legislation. It is worthwhile to recall what Sir Alladi Krishnaswamy Aiyer, one of the principal architects of the Constitution said at its very inception: "………it need hardly be pointed out that the proper functioning of the Constitution will to a large extent depend upon: ancillary or organic laws passed to implement the Constitution; the utilization of the principles of the common law of India which has grown by the adoption of the principles of English Common Law as a matter of justice, equity and good conscience; the acceptance of conventions in the working of our Constitution similar to those obtaining in other Constitutions and judicial decisions interpreting the Constitution, the Supreme Court being the final arbiter. Above all, it is the law abiding spirit of the average citizen in India that I regard as the greatest asset in the proper working of the Constitution."

    It is interesting that a study 'The Endurance of National Constitutions' (2009) by Z. Alkins, T. Ginsburg and J. Melton says that the average life span of a written constitution is 19 years; only a handful last longer than 50. The factors which help a constitution endure have been identified as specificity of its provisions, flexibility of the amending process and inclusiveness. Our Constitution, 71 years young, has these ingredients in a requisite measure and also the resilience to cope with the demands of time and circumstances. Fortunately, it has survived for 7 decades and more.

    As James, a former Solicitor General of the USA remarked in his The Constitution of the United States-Yesterday, Today and Tomorrow and which Dr. Sinha quoted in his inaugural address: Constitutions, as a governmental panacea, have come and gone, but it can be said of the American Constitution, paraphrasing the noble tribute of Dr. Johnson to the immortal fame of Shakespeare, that the stream of time that has washed away the dissoluble fabric of many other paper constitutions, has left almost untouched its adamantine strength. Excepting the first ten amendments, which were originally a part of the original charter, only nine others have been adopted in more than one hundred and thirty years. What other form of government has better stood the test of time? I am sure this sentiment will remain true with respect to our Constitution also.

    The successful working of a constitutional democracy depends upon not mere allegiance to the constitutional provisions and principles but imbibing a constitutional culture. It is necessary to build and nurture a constitutional culture which people from generation to generation will have to cherish and nourish. Constitutional values and aspirations will have to be internalized in the psyche of the nation. We need to develop and always have a decorous regard for and play by the rules of the constitutional game.

    The Constitution belongs to us, the people. In the unforgettable words of Justice Felix Frankfurter, "Democracy involves hardship- the hardship of the unceasing responsibility of every citizen. Where the entire people do not take a continuous and considered part in public life, there can be no democracy in any meaningful sense of the term. Democracy is always a beckoning goal, not a safe harbour. For freedom is an unremitting endeavour, never a final achievement. That is why no office in the land is more important than that of being a citizen." Therefore it is that we need to constantly remind ourselves that the Constitution- our treasured inheritance which we have to cherish- is presently in our keeping and that we at once its servants and its masters renew and maintain our allegiance to the fundamental charter. On this occasion- the Constitution Day- we can have no better wish than that the spirit of the Constitution animate our beings and its light illumine all our thoughts, words and deeds. May all of us aspire to the same noble contribution as the best of our forebears have made and be worthy of them and their great legacy and traditions.

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