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[Constitution Day 2020] Reminiscing India's Constitutionalism: Homage to the Indian Constitution

Nupur Thapliyal
26 Nov 2020 10:31 AM GMT
[Constitution Day 2020] Reminiscing Indias Constitutionalism: Homage to the Indian Constitution
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"However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good." -Dr. B.R. Ambedkar At the time when the Constitution of India was framed, democracy was meant to be its utilitarian manifestation. Pandit Jawaharlal Nehru while moving...

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"However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good."

-Dr. B.R. Ambedkar

At the time when the Constitution of India was framed, democracy was meant to be its utilitarian manifestation. Pandit Jawaharlal Nehru while moving the Objectives Resolution commented that democracy needs to be extended from political to the economic and social realms. His resolution had foreseen social justice in its full sense but it could later work out for the said changes through a process of political democracy and liberty of an individual.[1] The Rule of Law was meticulously fostered and an impartial, free and independent set up of judiciary was done in order to sustain the Rule of Law but also to reconcile and resolve the relations between people and organs of the State inter se. The Government of India accepted the pious Constitution of India as a prescriptive and normative system directing the functionaries of the State to pay utmost attention to ensure operation and compliance with the demands of social engineering in the country.[2]

Constitutionalism provides the chance to give accurate and mandatory language in a legal document to restrain the forces of government and to control the powers of government authorities. It is an instrument guided by the Rule of law used for the prevention of tyranny and protection of individual rights and liberties of man. Constitutionalism is a traditional legal mandate that the drafters of the Constitution have given to the people of a State for governance of mankind. It is the same guiding force that has enabled man to draft the Constitution which thereafter rules its creators and organizes the powers in a limited yet extensive manner.

Dr. B.R. Ambedkar, the drafter of the Indian Constitution, in his speech on November 4th, 1948 had quoted George Grote and said that:

"A paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to define legal control and unrestrained censure of those very authorities as to all their public acts combined, too, with a perfect confidence in the bosom of every citizen amidst the bitterness party contest that the forms of the constitution will not be less sacred in the eyes of his opponents than his own."[3]

Ambedkar was influenced with the idea of constitutionalism propounded by Grote. In his view, Grote's history of Greece and Athenian democracy was motivated with an impulse of rescuing the democracy from the superior critics like Plato and Thucydides.[4] Grote emphasized on two elements of a genuine constitutional structure, first, aristocracy combined with liberty and self restraint and second, America's idea of constitutionalism.[5] This was the idea that led Ambedkar to think as to why the creation of democracy was important for India in which the democratic spirit was non-existent.

The Indian Constitutionalism gathers its merits from various principles of constitutional law. Indian Constitution is known to be one of the longest constitutions in the world.[6] The most significant characteristic is the codification. It not only provides for individual rights, restrictions on governmental power, democracy and social justice but also included protection to the institutions of the State. Another distinct yet equally important feature responsible for the stability of Indian constitutionalism is the independence of judiciary and power of judicial review.

While choosing a proper political order for India, they did not believe in the politics of religion or faith but they chose the way of hope.[7] Therefore, G. Scott Gravlee reviewed hope as a necessity for moral progress of a society.[8] They debated for a constitution detailed in its experiences integrated with individualism which assimilated the concept of separation of powers and independence of judiciary for the purpose of interpretation of the constitution whenever intended. The objective was to satisfy the aspiration of the people as stated in the preamble, for the protection of individual and collective rights of the society.

The framers of the Indian Constitution assembled to draft a constitution that could align with the principles of India as a country.[9] These principles were driven by forces such as social, semantic, religious and geographical classifications. India was shattered from the aftermaths of partition and majority of its population lived in absolute poverty and chained with unenlightenment. Plague, diseases and deaths were the new normal. Economic and social hardships were widening the graph of inequalities.

The social relationship between people was settled through destructive practices of caste system. Therefore, the drafters coming from various social groups, representing variety of social conditions, having an understanding of the principles of common law convened to define a framework for betterment of India's future. Austin Granville in his book titled "The Indian Constitution: Cornerstone of A Nation" discussing the Constituent Assembly debate mentions that according to Rajendra Prasad, India's first President, the Assembly's ultimate objective was to provide India with a government to end the evil of poverty and dirt, abolishment of class distinction and exploitation of the weaker and safeguarding reasonable living conditions to such people.[10]

Therefore, while drafting the Constitution of India 1950, the framers enlisted and incorporated the spirit of constitutionalism by way of various Articles providing constitutional protections. Let us understand Constitutionalism is India to be based on two basic elements namely on means and ends. Consider means as the mechanisms provided under the Indian Constitution for the fulfillment of principles under which it functions. Along with this, consider these principles as ends. These ends can be categorized as the principles enumerated in the preamble of Indian Constitution i.e. justice, liberty, equality, fraternity that endeavor to establish socialist, secular, sovereign and a democratic nation. These ends can also be traced under Part III and IV of the Constitution which defines fundamental rights and socio economic rights. Constitution defines the powers and functions of the three organs of the state namely the legislature, the judiciary and the executive which are the means to achieve the ends as discussed above.

The constitutionalism in India can be understood as the combination of these means and ends where the ends are the final goals that the Constitution ultimately strives to secure and protect whereas the means are the structures and institutions of the state that assist the constitution in protecting the rights and constitutional principles. With the passage of time, the Indian Constitution has undergone various changes due to the modernization of social values, interpretation of the courts, constitutional amendments and judicial activism. This process has shifted the Indian constitutional towards transformational constitutionalism.

Transformative constitutionalism is the modification of law through by way of timely amendments to reform the statute for bringing quintessential changes or enacting a new law in place of a former statute.[11] The principle of transformative constitutionalism envisages in itself a practical and contemporary approach focusing towards realizing the constitutional guarantees and protection of individual rights with the change of social and political structure of a country. The most significant feature of transformation is the judicial organ of the state. Since the concept of transformative constitutionalism relies on the social and political changes, the judiciary acts as the driving force of this constitutionalism change by interpreting the law a par with the contemporary developments.[12]

At the outset of a new Century and emergence of new democratic states, the conventional foundations of constitutional rule constantly face challenges with regards to the timely independence, globalization, enhancement of technologies and communication, both nationally and internationally. With these dynamics, the time has come for the states to live up to such challenges in theories of constitutionalism and to uphold the ultimate goals of justice, liberty, freedom, equity and dignity. A more challenging and a larger test that lies in front of the states is to uphold the values of its Constitution while the security of its citizens and individual liberty stands unimpaired. To ensure these principles, it is of utmost importance for the states to constantly keep developing the means and measures and the meaning of constitutionalism with the radical changes in the transforming society.

(Nupur Thapliyal is an advocate enrolled in New Delhi)

[1] B. Shiv Rao, The Framing of India's Constitution: A Study 125 (Universal Law Publishing, Lexis Nexis, 2015).

[2] Shree Ram Chandra Dash, "The Constitution and Constitutionalism in India" 34 The Indian Journal of Political Science 24 (1973).

[3] VII, Constituent Assembly Debates, 38.

[4] Plato and Thucydides contributed to the classical philosophy of politics in the Mytilenean debate known as the Platonic Dialogue. This dialogue was written by Plato in his book called Protagoras.

[5] Supra note 31 at 4.

[6] Louis Henkin and Albert Rosenthal (eds.), Constitutionalism and Rights: The Influence of the United States Constitution Abroad 97 (1990).

[7] The framers of Indian Constitution derived the politics of hope tracing the Aristotle's meaning of hope defined in the 4th Century BC. G. Scott Gravlee in an article titled "Aristotle on Hope" had written that Aristotle defined hope as "Hopefulness is crucial to ethical improvement. Hope is a waking dream."

[8] J. Woolfrey, "The Primacy of Hope" Social Philosophy Today 4 (2016).

[9] B. Sudershan Reddy, Former Judge, Supreme Court of India, Expanding Frontiers of Public Law, Keynote Address at the 17th Commonwealth Law Conference, Held on (Hyderabad on February 07, 2011), available at https://www.scconline.com/Members/NoteView.aspx?citation=JTXT-20constitutionalism #FN0001

[10] Granville Austin, The Indian Constitution: Cornerstone of a Nation 21 (Oxford University Press, 1966). See also V Constituent Assembly Debates, 2.

[11] Goutham Shivashankar, "Guest Post: Parliamentary Priviliges and Transformative Constitution- A Response to Karan Lahiri", Indian Constitutional Law and Philosophy, available at https://indconlawphil.wordpress.com/2018/08/01/guest-post-parliamentary-privileges-and-the-transformative-constitution-a-response-to-karan-lahiri

[12] Dr. Ansari Zartab Jabeen, "Indian Judiciary and Transformative Constitutionalism" Lex Warrier: Online Law Journal 3 (2019).


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