30 Nov 2020 8:25 AM GMT
The belief that individuals have natural rights- inherent and inalienable- and 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 the common good is what conceives and conceptualizes a constitution made in the name of the people, defining the powers of the main institutions...
The belief that individuals have natural rights- inherent and inalienable- and 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 the 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 government and the citizens.
The advent of democracy and limited government ushered in the concept of 'State' and transformed the status of the governed to citizens. 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. The constitution of a country is the supreme law. 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 moral worth of a society is reflected in its aspirations, the ideals it pursues and the values it cherishes.
The Indian Constitution represents a high watermark of consensus in our history. It reflects the best in our past, is responsive to the needs and aspirations of the present and is resilient to cope with the demands of the future. Our Constitution has been described as sublime. It is a beautiful document very competently drafted by illustrious persons of extraordinary talent and character. It is drawn with such meticulous care by people who so well understood how to make language fit their thoughts and vision. 'The structure is erected with consummate skill, the arrangements are full of wisdom and order, its defences are impregnable. It has been reared for an expanding future.' It contains provisions to ensure our survival and progress as a nation, united and strong, assuring the people of peace and prosperity. The vision of our Constitution and the values it seeks to cherish and promote are reflected in the Preamble and in Parts III and IV. The Preambular exhortation encapsulates the constitutional vision. This is the conscience of the Constitution; the judiciary is the conscience keeper. The ideal is to achieve the goals in Part IV while protecting the rights in Part III. The Constitution provides for stability without stagnation and growth without destruction of essential values. The Constitution apart from being a legal document is a political instrument and a social testament. An occasion like this- the anniversary of the Constitution's adoption- is an occasion for celebration as much as for introspection. We need to reflect on what has been and what should be.
We are a constitutional democracy. Democracy may be defined as the dwelling place which man has built for the spirit of liberty. Democracy has wider moral implications than mere majoritarianism. It is founded on the principle that each individual has equal value. Pluralism is the soul of democracy. Democratic polity must have the architecture of an inclusive society. Pluralist societies are the result of irreversible movements of history. Pluralism is not a mere transient vestige of a historical condition but a permanent feature of the public culture of modern democracies. India, in particular, is such a typical pluralist society-a model of unity in the mosaic of diversities. Law is perhaps the great integrating force and respects for law and its institutions the only assurance that can hold a pluralist nation together. The role of the Constitution in this regard is even more vital.
We may briefly look at some of the constitutional principles and provisions that have a bearing on preserving and promoting the nation's integrity and unity.
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 fraternity which has to be fostered. In this regard it is imperative to cultivate and keep alive the spirit of tolerance and respect for a different point of view which is truly the badge of our civilization.
It is this spirit of brotherhood that the Preamble refers to-'Fraternity' assuring the dignity of the individual and the unity and integrity of the nation. An awareness of, and adherence to, this and its practice are so very essential today. Art 1 of the Universal Declaration of Human Rights, 1948 says: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."
'Fraternity' was added in the Preamble because it was even then 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, even now.
Acharya Kripalani speaking in the Constituent Assembly said, "What we have stated in this Preamble are not legal and political principles only. They are also great moral and spiritual principles and if I may say so, they are my mystic principles. In fact these were not first legal and constitutional principles, instead they were really spiritual and moral principles. If we look at history, we shall find that because the lawyers and politicians made their principles into legal and constitutional form, their life and vitality was lost and is being lost even today." "If we want to use democracy as only a legal, constitutional and formal advice, we shall fail. The whole country should understand the moral, the spiritual and the mystic implications of the word "democracy"."
Fraternity is a political and social and even more a moral objective. Fraternity is not an expression used or expressly reflected in any Article of the Constitution and indeed no constitutional and legal provision can generate any brotherly feeling. The spirit of fraternity or concord is something that has to be generated by men-by their attitude and behaviour towards one another and in their social concerns. Provisions of law, however, can and do help foster such feeling. There are constitutional underpinnings that foster a concordial society.
There are express provisions in the Constitution which are designed to maintain and promote the unity and integrity of India. India is an indestructible Union of States (Art 1). It is a federation with a distinct unitary flavor which has been described by political scientists and constitutionalists in different ways. Allen Gledhill in his Republic of India observes that the founding fathers realized that the external situation called for a strong central executive. Their efforts were towards that end. For India a federal pattern was an inevitable necessity. The Constitution chose a flexible pattern. It has been described by the Supreme Court as 'amphibian', in the sense that it can move either on the unitary or federal plane depending on the exigencies.
Dr. Ambedkar highlighted in the Constituent Assembly the significance of the expression "Union." What is important is that the use of the word "Union" is deliberate. The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation. Not being the result of an agreement, no State has the right to secede from it. The federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single emporium derived from a single source.
Towards this end there is only a single common citizenship (Art 5) unlike other federal Constitutions like the U.S.A which provide for dual citizenship. The question whether there can be a domicile in a State or only one domicile in the territory of India came up before the Supreme Court. In D.P. Joshi v. M.B (AIR 1955 SC 334) the majority held that in India there can be "a domicile in a State" for purposes other than citizenship. This was in the context of the rules for admission exempting bonafide residents from payment of capitation fee. But the pronouncement of the Supreme Court in Pradeep Jain v. Union of India (AIR 1984 SC 1420) takes the view that there is only one domicile, viz. the domicile of the territory of India and there is no separate domicile for a State. This, I believe, is the better and the correct view. While Seervai supports the judgment in Joshi's case and is critical of the judgment in Pradeep Jain, Basu opines that the heresy of regional domicile as enunciated in Joshi's case has been rightly demolished in Pradeep Jain which, according to him, reflects the correct position in law. Further every citizen has the right to move freely throughout the territory of India, to reside and settle in any part of the country, to own property (now in Kashmir also) and to carry on any trade or business or occupation. [cf. Art19]. There is no express provision conferring such rights in the American Constitution. But these are read into and sought to be secured by the 14th Amendment. The Universal Declaration of Human Rights also expressly recognizes and provides for such rights. Arts 301 to 304 of the Constitution provide for free trade, commerce and intercourse throughout the country. Moreover while the State has no religion, liberty of thought, expression, faith, belief and worship is guaranteed and is effectuated by the provisions of Arts 25- 29. Freedom of thought and expression and dissent which are all provided for in Art 19(1)(a) [of course, subject to reasonable restrictions] is again an important constitutional value which underpins a free and harmonious society. It helps to cultivate the virtue of tolerance. It is the indispensable condition of nearly every other form of freedom. It is the wellspring of civilization and without it liberty of thought would shrivel. All these provisions seek to remove barriers amongst people of different regions, religions, cultures and languages and to foster a spirit of fraternity which alone can ensure a conflict free society and promote the unity and integrity of India. These are also different facets of the inalienable human rights that are incorporated in various international instruments.
It is necessary and pertinent to refer the Constitution (Sixteenth Amendment) Act, 1963 effective from 6-10-1963. It introduced various constitutional provisions like the ground of "sovereignty and integrity of India" in the reasonable restrictions clauses in Art 19 and the duty to uphold sovereignty and integrity of India in the oath of office to be made and subscribed to by various constitutional functionaries. This was pursuant to the recommendation of the committee set up by the National Integration Council and chaired by Sir C.P. Ramaswamy Iyer in the wake of divisive and secessionist tendencies and activities in some parts of the country. It is also significant to mention that after this Constitution Amendment the DMK Party gave up its ideology of secession and amended its party constitution. DMK leader Dr. C.N. Annadurai displayed exemplary statesmanship when he unequivocally declared that DMK once and for all gave up the demand for Dravidanadu and henceforth solidly and sincerely stood for the sovereignty and unity of India. By the 42nd Constitution Amendment the words "unity and integrity" of the nation were introduced in the Preamble. As Seervai perceptively remarked, a fair and even handed executive administration can do more to promote fraternity than any constitutional or legal provision.
The purpose of law in plural societies, as Lord Scarman said, is not the progressive assimilation of the minorities in the majoritarian milieu; it is not to extinguish the different groups but to devise means- political, social and legal of preventing them from falling apart. A true democracy is surely one in which the existence of the power of the many is conditional on upon for the rights of the few. India is intended to be an indestructible union with the units having no power of secession.The constitutional document is formidable with an internal architecture of its own. It greatly helps in this regard. 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.
The greatest need of the hour is to generate and sustain a sense of national identity. We have innumerable northerners and southerners, Tamilians and Bengalis, Punjabis and Marathis, but very few Indians. It is imperative that we think and act as Indians first. All differences have to be resolved within the framework of one nation and one country. There is also the prime need for maintaining the unity and integrity of the country without which individual liberty and human dignity may not be of much avail. And unity can be achieved only if there is a spirit of brotherhood among various sections of the people. All these objectives are therefore interrelated and interdependent and help promote and foster one another. Economic and social inequalities rupture the fabric of civil society. Public goods such as education, health care, human security are not the rewards of economic development. They are not social gains of economic reforms; but are indeed economic gains of social reform. Fraternity makes economic good sense too. This is true insurance for the good health of free market economy.
Tolerance of the beliefs, views and practices of others is imperative for a harmonious living and a concordial society. "The best test of truth is the power of thought to get itself accepted in the competition of the market." This freedom includes not only freedom for the thought we like but also freedom for the thought we hate. It is only thus can people grow and a society be cordial and conflict free. It is said that to doubt one's own first principles is the hallmark of a civilized man. The importance of tolerance and respect for another view which is indeed the hallmark of Indian civilization cannot be over-stated. It is crucial to cultivate and maintain that spirit and outlook.
Our greatest problem today is fundamentalism which 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."
The survival of the Rule of Law and an egalitarian society depends upon habits of consent and compromise which are attributes of a cultivated political society. The essence of all religions is Humanism and advancement of human welfare. From the dawn of civilization India has been home to a variety of faiths and philosophies all of which have co-existed. We have an unrivalled tradition of religious freedom and tolerance. The view was also echoed by Dr Arnold Toynbee who felt that the harmony of all religions is the only way to our growth and the alternative to destroying ourselves. India taught the world tolerance and sheltered the persecuted and the refugees of all religions and all nations. The world has to remember and learn this lesson and practice it to ensure our survival. Sardar Patel had opined in 1948 that history had taught the hard lesson that regional and linguistic separation imperiled national solidarity and unity.
Accommodation is an attitude which has been described as the: "...most notable characteristic in every field of Indian activity ....is the constant attempt to reconcile conflicting views or actions, to discover a workable compromise, to avoid seeing the human situation in terms of all black or all white.....As India"s philosopher President Dr. Radhakrishnan put it: Why look at things in terms of this or that? Why not try to have both this and that?" Amartya Sen in his Argumentative Indian speaks of the large tradition of heterodoxy in India. He says, heterodoxy "has a bearing not only on the development and survival of democracy in India, it has also richly contributed, I would argue, to the emergence of secularism in India, and even to the form that Indian secularism takes, which is not exactly the same as the way secularism is defined in parts of the West". "Dissent and heterodoxy", he observes, "run throughout the early documents, and even the ancient epic Ramayana, which contains dissenting characters". It is said that an unfailing index to the maturity of a democracy is the degree of its respect for the unwritten conventions. The silences of a constitution are eloquent and they are constitutional devices forming part of an advanced constitutional culture.
The Constitution apart from setting up a framework of government is also concerned with securing justice to all its citizens. The justice provisions in Part IV are declared fundamental to the governance of the country and underlie all human development. Democracy is not just a legal, constitutional, formal concept. It is also a social idea. Dr. Ambedkar remarked that social democracy means a way of life which recognizes liberty, equality and fraternity as the principles of life which form a trinity and to divorce one from the other is to defeat the very purpose of democracy. It is the confluence of these principles which leads to securing of justice which is the aim of all laws and government.
The Constitution's greatest gift has been an open society. The Constitution places the individual at the forefront of its focus. In a constitutional democracy it is the right to question, to examine and to dissent that enables an informed citizenry- the governed to scrutinize and rein in the government. The full growth and flowering of the human personality and the development of the community can take place far better in conditions of freedom. Development is not "merely the process of increasing inanimate objects of convenience". The value of accomplishing such conveniences must depend on how it impacts on the life and freedom of the people- whether people have the 'freedom to do what they have reason to value.' Development is really expansion of people's freedom. That is the blending of the guarantees in Part III and the objectives in Part IV.
Government has to be responsible and responsive. Law must reflect the 'general will'- public opinion which is evolved as a consensus through informed debates and discussion. Law is not an end in itself but only a means of achieving social good. The power of the State to implement and enforce obedience to the law carries with it the duty and responsibility of making the law known and understood in the right perspective. Government is a potent, omnipresent teacher. It is the duty of every civilized government to promote the intelligence of its people. As John Stuart Mill points out: "The first element of good government…. being the virtue and intelligence of human beings composing the community, the most important point of excellence which any form of government can possess is to promote the…. intelligence of the people themselves." Government should embark upon educating the people on the nuances of the laws and anything that affects them with patience and understanding. The right to protest entails the duty to listen to other voices and shun any rigidity or intolerance. All this is imperative in a constitutional democracy.
The constitutional principles and provisions which I have briefly referred to and a proper appreciation and effective application of these will certainly help to maintain and promote the nation's unity and integrity and ensure our forward march to realizing , if not fully, at least substantially, our tryst with Destiny.
Finally, we should not forget that the Constitution belongs to us-the people. Democracy is always a beckoning goal, not a safe harbour, freedom is an unremitting toil, never a final achievement. No office in the land is more important than that of being a citizen. The Constitution has survived for seven decades despite all the ups and downs, a happy and proud achievement by any reckoning. But the Constitution is not just for the passing hour. It is meant to survive and flourish for an enduring future. For this it is important and essential that constitutional values and aspirations become internalized in the psyche of the nation. To quote Learned Hand, "…let us look up to the great edifice which our forebears have built, of which we are now the guardians and the craftsmen. Though severally we may perhaps be paltry and inconsequent, for the present it is we who are charged with its maintenance and its growth. Descended to us, in some sort moulded by our hands, passed on to the future with reverence and with pride we at once its servants and its masters renew our fealty to the Law." On 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.
Views are personal.
[Adapted from the talk at the Webinar on Observance of Constitution Day organized by Press Information Bureau, Kolkata; Ministry of Information and Broadcasting, Government of India]