Polity Notes 03

Constitutionalism

• Philosophical Foundations and Necessity: The concept of the state emerged from the Social Contract theories, which posit that citizens voluntarily surrender some of their individual freedoms to a central authority (the state) in exchange for protection and order, thereby preventing social entropy or a “state of nature.” The British philosopher Thomas Hobbes, in his seminal work “Leviathan” (1651), argued for a strong, undivided government to avoid a life that is “solitary, poor, nasty, brutish, and short.” However, this concentration of power in the state creates a new problem. The state itself, intended to be a protector, can become an oppressor. Hobbes’ “Leviathan” can turn against its own creators.

  • This dynamic is often described as a two-person zero-sum game, where the relationship between state power and citizens’ liberty is inversely proportional. An expansion of state authority often corresponds to a contraction of individual freedoms.
  • This is encapsulated in the famous aphorism by Lord Acton (1887): “Power tends to corrupt, and absolute power corrupts absolutely.” To prevent the state from becoming tyrannical, the concept of constitutionalism was developed. Constitutionalism is the idea that government authority is derived from and limited by a body of fundamental law—the Constitution. It is a doctrine of limited government.

• Dimensions of Constitutionalism: Constitutionalism is a multi-faceted concept that can be understood through various lenses, all of which are interwoven in the fabric of modern democracies.

  1. Rule of Law: The most fundamental dimension is the strict adherence to the Rule of Law. This principle, systematically articulated by British jurist A.V. Dicey in his book “Introduction to the Study of the Law of the Constitution” (1885), implies that a nation should be governed by law, not by the arbitrary will of individuals. It has three core elements:
     • Absence of arbitrary power (supremacy of law).
     • Equality before the law.
     • Primacy of the rights of individuals. In India, Article 14 (Equality before Law) and Article 21 (Protection of Life and Personal Liberty) are cornerstones of the Rule of Law.
  2. Fundamental Rights (FRs): Constitutionalism is defined by the state’s ability to guarantee and promote the fundamental rights of its citizens. Part III of the Indian Constitution enumerates these rights, which act as negative obligations on the state, preventing it from encroaching upon individual liberties. The Supreme Court in Kesavananda Bharati v. State of Kerala (1973) elevated FRs to be part of the ‘basic structure’ of the Constitution, making them largely immune from abridgment by Parliament.
  3. Limited Government: This principle holds that no organ of the state—Legislature, Executive, or Judiciary—is sovereign or possesses absolute power. They are all creations of the Constitution and derive their powers from it. Their authority is circumscribed by constitutional provisions. For instance, the law-making power of the Parliament is limited by the scope of Fundamental Rights.
  4. Checks and Balances: Constitutionalism necessitates a system of internal checks and balances to prevent any single organ from becoming dictatorial.
     • Judicial Review (Article 13): The judiciary can strike down laws passed by the legislature and executive actions that are unconstitutional.
     • Legislative Accountability: The legislature holds the executive accountable through mechanisms like Question Hour, adjournment motions, and no-confidence motions. Financial control through the budget is a key tool.
     • Executive Influence: The executive has a role in judicial appointments and can pass ordinances when the legislature is not in session (subject to legislative approval).
  5. Sovereignty of Citizens: Ultimately, in a constitutional democracy, sovereignty rests with the people. The Preamble to the Indian Constitution begins with “WE, THE PEOPLE OF INDIA…”, signifying that the Constitution emanates from the will of the people. This sovereignty is exercised through universal adult suffrage (Article 326) and periodic elections, which empower citizens to change the government.

Important Features of Constitutionalism in India

The Indian Constitution incorporates several features that are hallmarks of a constitutionalist state. However, their effective implementation in spirit remains a subject of debate.

• Written Constitution: Provides a clear legal framework for the governance of the country, defining the powers and limitations of state organs. This contrasts with countries like the United Kingdom, which have an unwritten constitution.
• Separation of Powers: The Indian Constitution provides for a functional separation of powers. Article 50 (DPSP) explicitly calls for the separation of the judiciary from the executive. While not as rigid as the US model, it aims to prevent the concentration of power.
• Independent Judiciary: An impartial and independent judiciary is the ultimate guarantor of constitutionalism. Provisions like security of tenure for judges, salaries charged on the Consolidated Fund of India, and the power to punish for contempt ensure its independence.
• Judicial Review: This power allows the judiciary to uphold constitutional supremacy and protect fundamental rights. It was affirmed as a ‘basic feature’ of the constitution in the Kesavananda Bharati case.
• Federalism: Power is divided between the Union and the States (and now local governments) as per the Seventh Schedule. Described by K.C. Wheare as “quasi-federal” due to its strong centralizing tendencies, it nevertheless disperses power. The 73rd and 74th Constitutional Amendment Acts (1992) deepened federalism by constitutionally recognizing local self-governments.
• Civilian Control over the Military: The supreme command of the armed forces is vested in the President of India (Article 53(2)), a civilian authority, ensuring that the military remains subordinate to the democratically elected government.
• Gap between Letter and Spirit: Critics argue that while these features exist on paper (in letter), their real-world application (in spirit) is often weak. For example, the pendency of over 48 million court cases undermines the principle of timely justice. Similarly, data from the Association for Democratic Reforms (ADR) indicating that 43% of MPs in the 17th Lok Sabha had criminal cases against them weakens the moral authority of the legislature.

Other Salient Features of the Indian Constitution

• Parliamentary Democracy: India adopted the parliamentary system, where the executive (Council of Ministers) is drawn from and is collectively responsible to the legislature (Lok Sabha). This model, influenced by the British system and the Government of India Act, 1935, was chosen to ensure a “responsible government.”
• Fundamental Rights (FRs): Part III of the Constitution is described as the ‘Magna Carta’ of India. They are essential for democracy but are not absolute; the state can impose “reasonable restrictions” on them.
• Fundamental Duties (FDs): Added by the 42nd Amendment Act, 1976, based on the recommendations of the Swaran Singh Committee, these duties in Part IV-A are moral obligations on citizens and are non-justiciable.
• Secularism: The Indian model is one of ‘positive secularism’ or ‘Sarva Dharma Sama Bhava’ (equal respect for all religions), where the state maintains a principled distance from all religions. The word “SECULAR” was added to the Preamble by the 42nd Amendment.
• Directive Principles of State Policy (DPSP): Contained in Part IV, these are guidelines for the state to establish a just society. Inspired by the Irish Constitution, they are non-justiciable but are “fundamental in the governance of the country” (Article 37). Granville Austin described FRs and DPSPs as the ‘Conscience of the Constitution’.
• A Synthesis of Rigidity and Flexibility: The Constitution is neither as flexible as the British nor as rigid as the American. Article 368 provides for amendment procedures requiring simple majority, special majority, and special majority with ratification by states, depending on the provision.
• Single Citizenship: Unlike federal states like the USA, India provides for single citizenship to promote a sense of common national identity and fraternity.
• Emergency Provisions: Part XVIII of the Constitution (Articles 352, 356, 360) allows the President to assume extraordinary powers to deal with threats to the security, unity, and integrity of the nation.

Criticisms Against Our Constitution

• Not a Sovereign Body: Critics argued that the Constituent Assembly was a creation of the British (under the Cabinet Mission Plan, 1946) and not a directly elected, sovereign body. However, post-independence in 1947, it functioned as a de facto sovereign body, with complete freedom to frame the Constitution.
• A ‘Borrowed Constitution’: Critics termed it a “bag of borrowings” or a “patchwork.” Dr. B.R. Ambedkar responded to this criticism in the Constituent Assembly by stating that the framers had not hesitated to borrow good features but had adapted them to “suit the genius of the people.”
• Un-Gandhian Constitution: It was criticized for not reflecting the Gandhian ideals of a decentralized polity based on ‘Gram Swaraj’ (village self-rule). While the final structure is largely centralized, Gandhian principles found a place in the DPSPs, such as Article 40 (Organisation of village panchayats).
• A ‘Lawyer’s Paradise’: The British constitutionalist Sir Ivor Jennings made this comment, pointing to the legalistic language and complexity of the document. This was a consequence of the dominance of lawyers in the Assembly and the framers’ desire to be as precise as possible to avoid future litigation in a diverse country.
• Domination of the Congress Party: The Congress party held an overwhelming majority in the Constituent Assembly. However, the American historian Granville Austin in “The Indian Constitution: Cornerstone of a Nation” (1966) observed that the Assembly, despite being a “one-party body,” was representative. The Congress party itself was internally diverse, and it co-opted eminent non-Congress members like Dr. Ambedkar, N. Gopalaswami Ayyangar, and Syama Prasad Mookerjee to ensure inclusivity.

Prelims Pointers

• The concept of the state as a “Leviathan” was given by the political philosopher Thomas Hobbes.
• The principle of “Rule of Law” was systematically expounded by A.V. Dicey.
• Fundamental Rights are enshrined in Part III of the Indian Constitution.
• The power of Judicial Review is primarily derived from Article 13 of the Constitution.
• The 73rd and 74th Constitutional Amendment Acts (1992) granted constitutional status to Panchayati Raj Institutions and Urban Local Bodies respectively.
• The supreme command of the Defence Forces of the Union is vested in the President under Article 53(2).
• India’s parliamentary form of government is borrowed from the British model.
• Fundamental Duties were added to the Constitution by the 42nd Amendment Act, 1976.
• The Swaran Singh Committee recommended the inclusion of Fundamental Duties.
• The words ‘SOCIALIST’, ‘SECULAR’, and ‘INTEGRITY’ were added to the Preamble by the 42nd Amendment Act, 1976.
• Directive Principles of State Policy (Part IV) are borrowed from the Constitution of Ireland.
• The procedure for Constitutional Amendment is laid down in Article 368.
• Emergency provisions are contained in Part XVIII of the Constitution.
• Sir Ivor Jennings described the Indian Constitution as a “lawyer’s paradise”.
• Granville Austin described the Fundamental Rights and Directive Principles as the ‘Conscience of the Constitution’.
• K.C. Wheare described the Indian Constitution as “quasi-federal”.

Mains Insights

1. Constitutionalism: The Challenge of Bridging the Gap between ‘Letter’ and ‘Spirit’

   • The Dichotomy: While India has a robust constitutional framework on paper (in letter), its implementation (in spirit) faces significant challenges. This gap undermines the very essence of constitutionalism.
   • Causal Factors:
     • Institutional Decay: Weakening of institutions like the Parliament (reduced sittings, bypassing committees), Election Commission, and investigative agencies.
     • Judicial Bottlenecks: Extreme pendency of cases leads to the adage “justice delayed is justice denied,” eroding faith in the Rule of Law.
     • Political Culture: Rise of populism, criminalization of politics, and a confrontational political environment often sideline constitutional propriety.
     • Executive Aggrandizement: A tendency of the executive to concentrate power, often at the expense of legislative oversight and federal principles.
   • Consequences: This leads to an accountability deficit, erosion of citizens’ rights, and a decline in public trust in democratic institutions. Strengthening constitutionalism requires deep-rooted reforms focused on enhancing transparency, accountability, and the integrity of public institutions.

2. The Debate on the Nature of Indian Federalism: Cooperative, Competitive, or Confrontational?

   • Historiographical Viewpoints: India’s federal structure has been a subject of intense debate. While K.C. Wheare termed it “quasi-federal,” Granville Austin preferred “cooperative federalism.”
   • Cause-Effect Analysis: The strong unitary bias was a conscious choice by the framers to preserve national unity in the aftermath of the partition. However, this has often led to friction between the Centre and States.
   • Contemporary Dynamics: In recent years, the discourse has shifted.
     • Competitive Federalism: The Centre encourages states to compete for investments and improve governance (e.g., Ease of Doing Business rankings).
     • Confrontational Federalism: Increasingly, issues like the role of the Governor, use of central agencies against political opponents, and disputes over revenue sharing (GST compensation) have created a more adversarial relationship, threatening the cooperative spirit essential for a federal polity.

3. The ‘Basic Structure’ Doctrine: Judicial Innovation or Judicial Overreach?

   • Genesis and Significance: The doctrine, laid down in the Kesavananda Bharati case (1973), is the cornerstone of Indian constitutionalism. It posits that Parliament’s power to amend the Constitution is not absolute and it cannot alter its ‘basic structure’. This acts as the ultimate check against the tyranny of the majority.
   • Debate and Critique: Critics argue that the doctrine is undemocratic as it places the unelected judiciary above the elected Parliament. The lack of a precise definition of what constitutes the ‘basic structure’ is also cited as a flaw, giving judges wide discretionary powers.
   • Justification: Proponents argue that it is a necessary safeguard to protect the fundamental ideals of the Constitution from being subverted by a temporary parliamentary majority. It upholds constitutional supremacy over parliamentary supremacy.

4. Assessing the Criticisms of the Constitution: A Legacy of Pragmatism

   • While criticisms like it being a ‘borrowed constitution’ or a ‘lawyer’s paradise’ have some factual basis, they miss the larger picture.
   • Adaptation over Imitation: The framers did not blindly copy; they adapted global best practices to India’s unique socio-political context. For example, the parliamentary system was adapted to a federal structure, and secularism was molded into a unique Indian variant.
   • A Living Document: The Constitution’s enduring success lies in its dynamism and the framers’ foresight in creating a document that could evolve with the nation. Its complexity, often criticized, has also provided the necessary framework to navigate the intricate challenges of governing a vastly diverse country.