Dr. BR Ambedkar, once said “Indians today are governed by two different ideologies. Their political ideal set in the preamble of the Constitution affirms a life of liberty, equality and fraternity. Their social ideal embodied in their religion denies them.”
History was created when Hon`ble Apex Court, in a defining moment in history, took cognisance of the hardships faced by the itinerant migrant labour workforce in India and imposed guidelines for their transport and wellbeing. More than 4,5 crores of poor and impoverished labour workforce, earlier abandoned by the executive, saw equity, dignity and hope in the verdict. Their faith stood reposed in the Indian Constitution. Decriminalising sec 377 of the Indian Penal Code and recognising LGBT rights was yet one of the finest moments when the sun shone brightly on the judicial System and the Constitution, Yet, there have been transgressions too, in the form of doing a flip flop and allowing the conduct of the Rath Yatra and so on. As it seems, Constitutionalism has not only survived the challenges of the turbulent politics, but also excelled in it.
CONSTITUTION AND CONSTITUTIONALISM:
The term “Constitution” derives it’s meaning from the Latin word “constitutio” meaning main/important law. In India the Constitution is considered as the “Supreme Law” or is often referred as Lex Terrae.
The Constitution of India has a “Preamble”, which is introduced as the mirror of the constitution in as much as s it reflects the intention, philosophy of the constitution framers and the core principles of the constitution i.e. securing and give assurance to the citizens of India, the “Right to liberty of thought, expression, belief, faith and worship”, by guaranteeing their Fundamental Rights. Our constitution has adopted its objectives and principles from various other constitutions, like from the US constitution we adopted the principle of “independent judiciary”, “judicial review”, from Japanese constitution we adopted the principle of “procedure established by law” and from the Irish constitution we adopted the principle of “DPSP”.
The Constitution of India administers the power of the legislative function between the Parliament and State legislatures according to the lists of entries mentioned in the 7th Schedule of our Constitution. The Reserved powers are endowed in the Parliament and therefore it tries to create a harmonised relation between its citizen and the government.
Beside the concept of constitution, there is another concept called constitutionalism, which holds an important place in our country. Every democratic nation has a constitution of its own which is the supreme law but that doesn’t mean that every nation has constitutionalism, for example Germany under the rule of Adolf Hitler was subjected to dictatorship and the commands of the dictator is considered as the law of the land, which by itself implies that a country can have a constitution but not necessarily constitutionalism. The difference between the two concepts i.e. Constitution and Constitutionalism is that a constitution not only endows power to the various organ of the government but also seeks to put certain restraints on those powers, whereas constitutionalism is considered it is the “Anti-thesis of arbitrariness” as it not only acknowledges the need of the government vested with power, but it also recognises the fact that there ought to be certain obligation and limitations which should be imposed on these powers. As it is very pertinent that “too much of something is harmful” similarly if the power remains unchecked it will lead to a situation of despotism/absolutism and create an oppressive form of government which misuses its power and tries to jeopardise the fundamental rights of the citizens. Therefore, the essence of constitutionalism is very essential for the establishment of an Elected form of Government. An Elected/Democratic form of government is a people’s government. Constitutionalism ensures that the elected form of government is responsive to the demands and requirements of the people. Therefore, it is evident that Constitutionalism and Democracy goes hand in hand as Constitutionalism protects democracy and it is in a democracy that constitutionalism can flourish, if one fails the other loses its essence and validation in a blink of an eye.
But sadly in the modern form of democracy our constitution has lost its meaning and essence. As pointed out by jurist Nani Palkhiwala, “Our constitution has been defaced and defiled”- our constitution, which is the law of the land, has undergone so many amendments, and has become a document coloured by politics, fighting for its identity. By the last count, the constitution has undergone a total of 104 amendments. It is no longer the scenario, where the constitution is shaping or is acting as a guiding line for our country, rather it is now our country’s political ideology which is shaping the constitution according to its own convenience. The constitution is no longer a democratic document, but has become a political document. Infractions repeatedly caused due to these amendments have somehow overshadowed the essence of the “Doctrine of Basic Structure” of our Indian Constitution which includes “Rule of Law”, “Independence of Judiciary”, “Doctrine of Separation of Powers”, “The Principle of free and fair elections”, “Welfare State” and so on.
It has been seen that in early stages of independence, the Apex Court of India was conscious of the absolute powers to the parliament regarding the amendments of the constitution, as seen in the case of ‘Shankari Prasad Singh Deo v. Union of India’ and ‘Sajjan Singh v. State of Rajasthan’, In both the cases the tribunal has adjudged that the term “law defined under Article 13 of the Indian Constitution is to dealt in a sense that the Rules and regulations are made in exercise of ordinary legislative power and not as amendments to the Constitution made in exercise of constituent power under Article 368.” Later in the case of ‘Golaknath v. State of Punjab’ it was upheld that the “An amendment under Article 368 is law within the meaning of Article 13 of the Constitution and therefore, if an amendment takes away or abridges a Fundamental Right conferred by Part III, it is void”. Major constitutional amendments like the 24th, 25th,41st and 42nd that were brought in the constitution under the then government headed by Indira Gandhi were considered as a black spot on the Indian Constitution, as the government was not working according to the “letter and spirit of the constitution”. Under this government the idea of constitution and democracy was only practiced on pen and paper.
Through a series of Amendments as outlined below, there was a systemic sabotage of the Constitution, the 24th Constitutional Amendment Act was enacted in the year of 1971, the main reason for this amendment was brought, was in response to the Golaknath judgement (1967). The amendment gave parliament the power to amend/alter any part of the constitution which included fundamental rights by amending “Article 13” and “Article 368”. The 25th Constitutional Amendment Act, 1971 curtailed the citizens fundamental Right to Property, proviso that any law made with respect to Directive Principles of State Policy (DPSP) under “Article 39(b)” and “Article 39(c)” cannot be challenged on the grounds of violation of the rights guaranteed by Articles 14, 19 and 31. The 26th Amendment Act, abolished the privy purses and privileges of the former rulers of princely states. The 41st Amendment prohibited any type of civil or criminal proceedings against the president, vice-president, prime minister and all governors. Thus, any person who committed a heinous crime could become immune from any criminal action if he held the office. The 42nd Amendment which was introduced during the Emergency period severely restricted the tribunals of their powers to strike down any legislation which was “ultra-vires” the Constitution and Fundamental rights were made subservient to Directive Principles of State Policy. This shows that how are document was coloured by politics.
THE STRUGGLE & ITS AFTERMATH:
India, given its multiplicity of religions, diversity of faith, belief and customs weighed down by gender discrimination, intolerance and non-harmonious distribution of wealth has always posed challenges to the administratibility of the Constitutionalism. From time to time the constitutionalism has been put to severe state. As literacy rates soar, along with aspirations of the multitude, the concept of “Too many for too few” has reared its ugly head. The government despite of all its claims of “minimum government, maximum governance” continues to remain in the commanding heights of the economy. Private Sector has remained a distant second vis-a-vis the Constitution. Indian politics has always targeted the socially backward class and religion in order to gain ballot power, which in turn has led to social strife and political conflicts. As a result, there is a threat to the secularism of our country. The judiciary, often referred to as the protector and custodian of the Constitution, the courts in the Indian Judiciary plays a much visionary role under our constitution as it not only interprets the laws and do justice but it also gives validation and adds meaning to the letters and spirit of the constitution which may at times affect the Constitutional process. As seen in the Ayodhya verdict, the judiciary has to intervene into matters which were solely based on religious believes rather than facts, and, the court gave a decision which would strike a balance between both the parties and at the same time not hurt religious sentiments of two religious groups, when this was a job which should be done by the political executive of our country.. This indeed puts tremendous pressure on the judiciary, as the court, as it narrows down the scope of justice given that it is seen that in most religious matters, there has been an inconsistent application of essential practice doctrine which has created lots of resentment in common people against the judiciary as they considered it as circumscription of their freedoms to practice and profess their religion.
In spite of above both Indian Politics and the ideology of constitutionalism need to complement each other. Indian politics has to show restraint and show a scientific temper to take it forward. It has to remain as “by the people” not “buy the people”, “for the people” not “far from the people” and “of the people” not “off the people: For the country to survive, constitutionalism is essential and Indian politics has to steer clear from the narrow labyrinth like corridors of religion, intolerance, anarchy and rise above petty parochial considerations. “TO THIS GREAT GLORY, MAY MY COUNTRY BE AWAKE”.
About the author
Swayamsiddha Das is a 3rd year student pursuing B.A.LL.B.(B) from KIIT University