ESSAY ON “INDIA NEEDS CONSTITUTIONALISM AND NOT MERELY CONSTITUTION"

That was the year 1975. Indian Government had imposed National Emergency under the Article 352 of the Indian Constitution. It was widely agreed later that during the Emergency there were widespread violations of the “Doctrine of Limited Government” and lot of excesses by the Government. Fundamental Rights were compromised and democracy was put in grave danger. Even the Judiciary failed to fulfil its Constitutional Responsibilities as seen in its judgement in Additional District Magistrate, Jabalpur v. S. S. Shukla,1976. This phase in history of independent India teaches us many lessons. When we merely abide by the Constitution and undermine Constitutionalism (One of its key component being Doctrine of Limited Government) we can even threaten the basic foundations of India, the World’s largest democracy.

 

Before we begin to understand this huge need for Constitutionalism in India it would be pertinent to first define Constitution and Constitutionalism. Later we will look into the need for Constitutionalism. Finally we shall conclude suggesting some measures to strengthen Constitutionalism in India.

 

Constitution

The word “Constitution” traces its roots to the Latin word "constituere" which means to establish or appoint. The term Constitution therefore literally means the action of constituting, framing or establishing something. A Constitution can therefore be defined as "The system or body of fundamental principles according to which a nation, State or body politic is constituted and governed." Further, the Constitution is the highest and supreme law of any country. It establishes the major organs of government. It defines their functions and powers and relationship amongst them, and sets out the rights and duties of the citizens. Also, a Constitution establishes the relationship between the State and its citizens and acts like a Social Contract between the State and its subjects on the manner of governance and exercise of State power.

 

Indian Constitution, which was adopted on 26^th November 1949, after nearly three years of hard work by the founding fathers of our Constitution is a stellar piece of legislation which has stood the test of time and had become a role model for many other country’s constitutions. The Supreme Court in Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala,1973 called our Constitution as a “Living Document” which continues to be relevant even today.

 

Constitutionalism

Historically Raj Dharma, the ancient Hindu concept that integrates religion, duty, law and

responsibility is equivalent with constitutionalism. Also, Kautilya’s Arthashastra advises the king on various governmental issues, economic development and administration during crisis while keeping a check on the powers of the King. The term Constitutionalism has not been defined in the Constitution of India. The Supreme Court of India in its judgments has explicated the ‘idea’ of constitutionalism and has employed the term ‘constitutionalism’. Constitutionalism is basically an idea or philosophy that government should be limited in its powers and that its authority depends on its observation of these limitations. In particular, these limitations relate to legislative, executive and judicial powers. In N. Kannadasan v. Ajoy Khose,2009 the Supreme Court observed, “Constitutionalism envisages that all laws including the constitutional provisions should be interpreted so as to uphold the basic features of the Constitution”. Constitutionalism is thus a very wide and an all-encompassing term which can be better understood by looking at the various basic elements of it.

 

Basic Elements of Constitutionalism

There are certain basic elements of Constitutionalism which form its foundation. Rule of Law as opposed to rule by the arbitrary judgment is among the most important element of Constitutionalism. This includes principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. Further, an Independent and Accountable Judiciary is fundamental to Constitutionalism by upholding the Supremacy of the Constitution and by checking arbitrariness in the working of the other organs of the government.

 

Constitutionalism also calls for a strong protection of the interests of citizens, Civil Rights as well as Civil Liberties especially for the minorities and vulnerable sections of the society. Also the Doctrine of Checks and Balances is another quintessential element of it. The purpose of Checks and Balances is to make the branches of government accountable to each other. The power of the Judicial Review of the Higher Judiciary is an apt example of it. Other key elements are as follows- Regular, Free & Fair Elections, Accountability, etc. Further, the Supreme Court in the Government of NCT of Delhi vs Union of Delhi,2018 expanded Constitutionalism to include Constitutional Morality and Constitutional Pragmatism. Having looked at the essence of Constitutionalism we shall now examine why India needs Constitutionalism and not merely Constitution.

 

India needs Constitutionalism and not merely Constitution

Firstly, Constitutionalism is necessary to uphold the spirit and the ideals of the Constitution. For instance, lack of a truly independent judiciary which is an essential feature of Constitutionalism had led to judicial neglect of rights of the citizens during the emergency times. On the other hand, an independent and strong judiciary upheld the various freedoms of the citizens and as seen in Shreya Singhal vs Union of India,2015. 

 

Second, Constitutionalism is required to limit the powers of the Executive and to ensure that it abides by Constitutional Principles. For example, when the Union Government arbitrarily dismissed State Governments to impose President Rule using its Constitutional Powers under Article 356 of the Constitution, the Supreme Court using its powers of Judicial Review in SR.Bommai vs Union of India, 1994 greatly limited the use of President’s Rule Clause.

 

Third, Constitutionalism is necessary to ensure that Popular Sovereignty as manifested in the Parliament does not undermine the Supremacy of the Constitution. When the Parliament made the 99^th Constitutional Amendment creating the National Judicial Appointments Commission which could have affected Separation of Powers and independence of the Judiciary, the Supreme Court struck it down in the Supreme Court Advocates on Record Association Vs Union of India Case,2015. On the similar lines are the limitation of unbridled powers of the Armed Forces in the AFSPA Verdict and in the recent Judgement of K.S.Puttaswamy vs Union of India,2018 where the Court held many provisions of the Aadhaar Act as null and void.

 

Fourth, lack of Constitutionalism affects the rights of citizens and the holy promise of Liberty, Equality and Fraternity made by the Preamble of the Indian Constitution. For instance, merely abiding by the Constitution could not stop the widespread misuse of the Sedition Provisions (124A of the IPC) and laws like the National Security Act, POTA, etc which are often used by the State to curtail the freedoms of citizens. The expansion of the rights of citizen under Article-21 like the Right to Privacy, Right to Environment are few another instances of Constitutionalism in practice.

 

Fifth, Constitutionalism is also necessary to govern the areas which are not explicitly covered under the Constitution and those clauses in the Constitution which need the use of Discretionary Powers. For instance, lack of Constitutionalism is the reason for widespread misuse of Anti-Defection Law, which is ambiguous and silent on many aspects as seen in Karnataka and Madhya Pradesh recently. On the similar veins is the misuse of Money Bill clause due to the malafide use of the Speaker’s discretionary powers. Another good example is the interference of the Governor through his arbitrary use of discretionary powers under Article-163 of the Constitution as seen in Arunachal Pradesh, Uttarakhand and in Maharashtra in recent past.

 

Lastly, Constitutionalism today is also of great importance to move towards a Dynamic, Just, Equal and Progressive Society by expanding the ambit of the Constitution and by reading down anachronistic and discriminative laws and practices in our country. We have many such recent examples where the Supreme Court used the spirit of “Transformative Constitutionalism” for doing this. A finest example is the Sabarimala Verdict-Indian Young Lawyers Assn. v. State of Kerala ,2018 where it read down practices which discriminated women. On the similar lines is the Shayaro Bano vs Union of India,2017 where it deemed Triple Talaq and the laws backing it as against the spirit of the Constitution. Yet another such instance is the reading down of Section-377 in Navtej Singh Johar vs Union of India,2016 where the rights of the LGBT community were upheld.

 

Towards an India with a Vibrant, Strong Constitutionalism

The above analysis shows that while having a written, detailed and dynamic Constitution like ours can greatly help in establishing good governance and democracy, it must be supported with the Philosophy of Constitutionalism. Constitutionalism can be strengthened by taking some steps like ensuring the Independence of the Judiciary, respecting the Constitutional boundaries between the three organs of the State and upholding the Basic Structure Doctrine as delineated by the Honourable Supreme Court in the Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala,1973 and other judgements.

 

Further, ensuring a free and fair elections with wide ranging electoral reforms to address the Political Corruption and Criminalisation of Politics can greatly help the cause of Constitutionalism as it is the people who are responsible for upholding the Constitution as suggested by Dr.B.R Ambedkar. This is especially relevant when 43% of 17^th Lok Sabha Parliamentarians have criminal background. Judicial Reforms to address the Judicial delays can make the courts more stronger so that they can act as Bulwarks of Constitutionalism. Utmost Respect for the Court Directives and Orders is also necessary as many times Court Directives like in Prakash Singh & Ors vs Union Of India, 2006 are not implemented in letter and spirit. And lastly, striving for Attitudinal Change and imbibing the highest ethical standards in our children through Value Based education can create generation of citizens who can act as the future torchbearers of Constitutionalism in our country.

 

To conclude, we can have Constitutionalism in a nation without necessarily having a Constitution like in the United Kingdom, but a nation cannot survive and uphold the rights of citizens if its Constitution does not enshrine the concepts of Constitutionalism. History is replete with such examples- like in Pakistan which got a Constitution back in 1972, but is still far from being called as a true constitutional democracy due to lack of Constitutionalism.

The Indian Constitution is a stellar document drafted by people of great Integrity, Foresight and it is no doubt one of the most important reasons for India to continue as a Thriving, Liberal and Responsible Democracy. It is the culmination of the rights and aspirations of 1.3 billion people. If we want that sacred document to continue to act as the beacon and guiding force for time immemorial we must strive to realize the true spirit of Constitutionalism.

 

Nothing would be more apt than ending this essay with the pearls of wisdom from Justice Krishna Iyer:

“ If the Constitution is like a holy book, the spirit of Constitutionalism is the light that enables one to read it. Unless there is the light of Constitutionalism, the true collective conscience that went into the making of our Constitution cannot be realised in any meaningful manner”