Constitutionalism of the Indian Constitution

Introduction

“The beauty of the Indian Constitution is that the entire structure of the country is based thereupon. It is the very pillar upon which the democracy of India stands”[1]

These majestic words of Justice Khare echo the spirit of the Indian constitution. It is the supreme law of land on which the country firmly stands. The principles, rights, powers and procedures for both the state and its people are contained in the country’s constitution. Drafted by the Constituent Assembly with Dr B. R. Ambedkar as its chief architect, it is the longest and the second largest active constitution in the world. In 1946, after much resistance from the British government, a Constituent Assembly was formed which drafted, debated, deliberated and finally formed the Indian Constitution. After India got its independence on 15th August, 1947, the disorder of the country required a definite set of rules that could constrain and restrict the government in a free society, namely to protect life, liberty and property of the citizens. And therefore, on 26th January, 1950 the Indian Constitution came into force.

The principle of constitutionalism explains the Indian constitution as a political philosophy which encompasses the duties of government and its citizen so that proper democratic governance could prevail in the country. It is a proportion of the strength of our constitutionalism that it has made conceivable the changes from a prevalently parliamentary system driven by the prime- ministerial officials to a separated conceivable administrative force shared under a legal executive driven political framework.

This article includes the explanation of some concepts contained or derived from the Indian constitution in the context of contemporary society which have their roots deeply embedded in the soil of the principle of constitutionalism and are the reason for major achievements and challenges of the very principle.

Constitution and Constitutional Morality

In the article[2] ‘Matters of Morality’ the author (Vikram Aditya Narayan) has taken into consideration the Naz Foundation case[3] and has explained the phrase “Constitutional Morality.” By using Article 19, Article 21, Article 25 and Article 26 of the Indian constitution it has been pointed out that the real meaning of the phrase Constitutional Morality is “Moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.” [4]

“The words like law and morality are interrelated to each other.”[5]

In the case, Naz Foundation v. NCLT, the author studied the judgement and concluded that there exists distinction between Constitutional Morality as invoked by Dr Ambedkar and that spoken of, in the Naz Foundation case. The former focused on the forms of the constitution[6], that is, applying as it is said while the latter focused on the principles underlying the content of the constitution. Further, the country’s administration is based on its constitution but it’s understood concept of Constitutional Morality that ensures that the administration is not perverted. As said by Granville Austin the Indian constitution is “first and foremost a social document” therefore broad and abstract terms like equality, non-discrimination, morals and liberty are frequently used in different meanings. However, what can be done is, when the judges are required to give a judgement relating morals, they are required to read the constitution morally.[7] In the contemporary times, when the states are required to conform to the normative framework of human rights, Constitutional Morality can play a vital role in guiding public policy decisions.

Constitutional Amendments as A Fundamental Need

The life of a nation is inconsistent, therefore, it is natural to find ambiguities in the constitution drafted in one era in a particular situation and its implementation today, where the state of affairs is often different. Hence, it is necessary to have some device, machinery or mechanism to accommodate to the time to time changes required. One way of doing this can be Judicial Interpretation, that is, by using already decided cases of the court. But the framers of the constitution left this task entirely on judiciary and have incorporated Article 368 as a formal method for bringing about amendment in the constitution. Necessary changes have been brought in by the way of amending the Indian Constitution. It is considered to be both flexible and rigid. There are 103 amendments made till date according to the changing needs of the country.

S. K. Chakraborty in his article[8], “Constitutional Amendment in India: An Analytical Reconsideration of the Doctrine of ‘Basic Structure” has explained the importance of amendments that are brought in the constitution from the time of its drafting by the drafting assembly till today. As a ‘general will’ of the people it is considered as the basic document that defines the position and power of the various organs of the state. It is truly living document which has been gradually moulded to change according to the changing worldview. It is not only the law of land but also a living organic thing by which other laws are to be created as per the requirements of the nation. There are ample number of examples highlighting that according to the need of the people of the country the constitution has been amended. One such example is the recent 103rd Amendment.

In M.R. Balaji[9], the Supreme Court made a significant observation by saying, “social backwardness is, in the ultimate analysis, the result of poverty”. Under this light for the upliftment of the Economically Weaker Sections (E. W. S.) of the society, 10% reservation was added in jobs of central government jobs as well as in government educational institutions. It is also applicable on admissions to private higher educational institutions. This reservation is “in addition to the existing reservations and subject to a maximum of 10% of the total seats in each category”. Another recent example is the scrapping of Article 370 which gave special status to Jammu and Kashmir followed by the Jammu and Kashmir Reorganization Bill in Parliament. Legislative changes like the ones made were the need of the hour, therefore, the government brought in subsequent amendments.

Conclusion

The theories of constitutional morality and constitutional amendments are in consonance with Indian constitutionalism, that is, a constitutional government is a democratic government. Every provision has its own importance and if any provision is not explicitly present in the constitution but its reflection is found in some clauses, then it will be sufficient to promote the spirit of constitutionalism.

“Constitutionalism is a commitment to limitations on ordinary political power, it revolves around a political process, one that overlaps with democracy in seeking to balance state power and individual and collective rights, it draws on particular cultural and historical contexts from which it emanates and it resides in public consciousness.”[10]

Endnotes

[1] Chief Justice of India, Mr Justice V. N. Khare in Union of India vs. Naveen Jindal: 2004 2 SCC 510, paragraph 27.

[2] Matters of Morality, Vikram Aditya Narayan, CALQ (2016) Vol. 3.1. [3] 2009 160 Delhi Law Times 277. [4] A.P. Shah, Chief Justice, Delhi High Court Naz Foundation v. Government of NCT of Delhi (2009). [5] See generally: H.L.A. Hart’s Concept of Law (1961): Lon Fuller’s Morality of Law (1964). See: Tony Honore, The Dependence of Morality on Law, 13 OXFORD JOURNAL OF LEGAL STUDIES 1 (1993). [6] The constitutional morality spoken of by Dr Ambedkar has been recognized by the Supreme Court of India as recently as in 2014, in the case of Manoj Narula v. Union of India, (2014) 9 SCC 1. [7]Ronald Dworkin, The Moral Reading of the Constitution, The New York Review of Books, (March 21, 1996), http://www.nybooks.com/articles/1996/03/21/the-moral-reading-of-the-constitution/ [8] Constitutional Amendment in India: An Analytical Reconsideration of the Doctrine of ‘Basic Structure’, Sanjit Kumar Chakraborty, SSRN Electronic Journal, 2008. [9] AIR 1963 SC 649. [10] Douglas Greenberg.

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Author Details: Saumya Srivastava is a student at Symbiosis Law School, NOIDA.