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Constitutionalism is the road ahead

If ever a colossus strode over the Indian legal system, it would undoubtedly be the Constitution of India. For more than a century, people in India were suppressed under the shackles of tyranny. The Constitution has undoubtedly been a path-breaking document. It not only guaranteed freedom to the citizens but also attributed meaning to the rights of each individual. Within no time since its enforcement, it came alive in the popular imagination.

With the help of various provisions mentioned in it, ordinary citizens began taking its recourse and made arguments to claim their rights. Focusing on the use of the constitution in building a strong democracy against any other social or political propaganda, this article illustrates how attempts are being made to renegotiate the social structure of the nation, circumvent laws, undermine the basic structure and overbear the country with a completely different ideology to redefine and redraft the Constitution. Exploring various judicial pronouncements and the Indian Constitution of 1950, the article considers that constitutionalism is the road ahead.

In the year the Constitution was enacted, a young Muslim vendor, Mohammed Yasin, hailing from a small town of Jalalabad in North India had approached the court.[1] The town government had implemented a new set of bylaws under which the sale of various commodities was licensed. And unfortunately for Yasin, only one license was provided for the sale of vegetables and that too, to a Hindu merchant.

It was not just a license but also a pass to win a monopoly over the market as other vegetable vendors could only sell their vegetables after paying the license holder certain fees. Yasin applied to the Supreme Court under Article 32 of the Constitution for issuing a writ of mandamus to compel the lower authority to perform required duties correctly.[2]

The appellant's argument was based on the fact that the new regulation was ultra vires and it not only violated the right of individuals to carry trade and occupation but it hampered the secular fabric conferred to us by the Constitution.

The Supreme Court held that the by-laws of a Municipal Committee charging a prescribed fee was an order by a State authority contravening Article 19 (1)(g) Right to practice any profession, or to carry on any occupation, trade or business. These by-laws affect the wholesale business and must be repealed with immediate effect. Why should Yasin's story be interesting to us today?

Yasin was perhaps one of the very first Indians to present himself before the honourable Supreme Court for asking legal solutions to his problems. The presence of the idea of constitutionalism and secularism is an important aspect of his constitutional journey.

To claim his right of free trade and to remind the town government of the scope of their powers, he questioned the legality of the bylaws. In the very first decade of its inception, the Constitution came alive as a part of every Indian's life but recent trends, however, suggest that it is being misinterpreted and fabricated for social, parochial, and political interests. Is it sufficient to have a Constitution in a country, or is it the empathy towards the idea behind the constitution that counts?

Ideal of Constitution- Constitutionalism

What is constitutionalism?
How have recent times undermined the meaning and applicability of this philosophy? The idea of constitutionalism is often associated with the 'social contract theory' propounded by John Locke. Locke is commonly known as the father of liberalism, for he believed that it was the people who formed the government, and hence it is their duty to protect the rights and ensure the welfare of every citizen. But if the government fails to do so, the citizens have the right to question authority.

This implied that the provisions outlined in the constitution are supreme and no authority can supersede that. For genuine democracies, it is not only the realization of the Constitution that is important but it is the permeation of the idea and concepts of the Constitution in the society as a whole that is essential. Countries will be gripped in despotism if the constitutionalism fades.
 For despotism is the antithesis of constitutionalism.

The political philosophy of constitutionalism primarily affirms that the authority and power of government are derived from the people and the same should be limited to the scope of the constitution. In simpler terms, constitutionalism is the ideology behind the documented provisions in the constitution. Nonetheless, the scope of constitutionalism is not only limited to keeping a check on the powers of government but it is inclusive of the complete welfare of citizens. It was way back in 1863 when Abraham Lincoln rightly said, Government of the people, by the people, for the people.

The constitution is a holy book for a democracy, clearly outlining the principles and rules governing the nation. Our constitution is primarily based on that of the USA. And thus, we see that the origin of conceptualizing constitutionalism dates back to the signing of Magna Carta. It became the first document to compel an English king to act according to the rule of law. It not only ensured the separation of powers but also the supremacy of law. Constitutionalism became the antithesis to arbitrary power.

Is it possible to have a situation wherein there is a constitution by no constitutionalism or vice versa? Germany, for example, has a written constitution, The Basic Law of the Federal Republic of Germany but when it was under the rule of the leader of the Nazi party, Adolf Hitler, there was a complete absence of constitutionalism. Not a single person could question when Hilter transformed Germany from a democracy into a dictatorship. While on the other hand, the United Kingdom is the best example of the presence of constitutionalism without codified provisions.

In I.R. Coelho v. Territory of Tamil Nadu and Ors.[3], it was held by the Supreme Court that:
The rule of constitutionalism is presently a legitimate standard which requires the presence of command over the activities of governmental capacity. Implying a guarantee that it doesn't wreck the just standards from where it derives its authority. These popularity based standards incorporate the security of key rights. The standard of constitutionalism advocates a check and parity model of the partition of forces it requires a dispersion of forces. The assurance of established rights through customary law is the primary component of constitutionalism in India.
An important ingredient of constitutionalism in modern democracies is having empathy towards secularism. But what is meant by being secular in a democracy like India?

Secularism- a parameter contemporary constitutionalism

A closer look at world history reveals that the western definition of secularism is different from how it is interpreted in India. For the longest time in history, there was co-existence of administrative powers between the king and the church. But owing to political reasons a divorce of powers between the king and the Church. Hence, the western definition of secularism underlines that it is the divorce of powers of the king and church.

In St. Xavier College v. State of Gujarat,[4] the Supreme Court held that although the word 'secular state' is not expressly present in the Constitution there can be no doubt that Constitution-makers wanted to establish such a State.[5]

Thus India was always secular in nature and practice, but the word 'secular' never appeared in the constitution until the 42nd Amendment Act in 1976. It was in the middle of the 21-month long national emergency when through an amendment the words 'socialist' and 'secular' were added to the preamble. With subsequent attempts by the politicians to subvert the constitution, it was realised that there needs to be a basic structure of the constitution which could not be amended. By that time, everyone in India accepted that Parliament must not be given unlimited power to amend the Constitution.

The marathon hearing of the Kesavananda Bharati v. State of Kerala [6] not only rejected the view of the courts in re Berubari case[7] that preamble was not a part of the constitution but also yielded the formulation of the basic structure doctrine saving democracy and preserving the rule of law.

S.R Bommai v. Union of India
[8] was placed before the Indian judiciary after President Ramaswamy Venkataraman proclaimed Article 356 dismissing the Bommai government in 1989. The Supreme Court held Secularism is the basic feature of the Constitution.

The Indian definition of secularism is clearly outlined in the preamble. Secularism is the liberty of thought, expression, belief, faith, and worship. The father of the constitution, Dr Ambedkar wanted to convince the world of the Indian definition. To avoid any confusion that might arise on the scope and meaning of secularism, our definition was mentioned clearly.

Now since The Preamble of the constitution is not justiciable, i.e. it cannot be enforced against the state by the citizens through the courts, a special place was granted to this crucial concept, in Part III, i.e the Fundamental Rights (Article 25 to 28). If the right to religion was not given the status of a fundamental right it's position would not have been as secure as it is today.

The policy that India follows on secularism is that of 'no state religion' and is not anti-religion. The Indian model states that there is no state religion, citizens who are the entity of the state have their respective religion. And there is strict compliance of 'watchful ambivalence' and peaceful co-existence of various religious practices.

Why should the basic structure of the constitution be sensitive to secularism?

Before understanding the chemistry of secularism and constitution, understanding democracy is of vital importance. The word democracy is known to have originated in the Greek cities, notably Athens. Democracy meaning 'rule of people' stood as an antithesis of aristocracy meaning rule of the elite.

Equality among citizens, the right to elect and overthrow governments, and rule of law are the important characteristics of a democracy. For contemporary democracies, especially India, which is home to various religious cultures and traditions there is no other way to maintain peace and have welfare other than to have the existence of healthy constitutionalism and secularism. With the fading of secularism and constitutionalism, unrest has started to envelop India.

Withering of constitutionalism and secularism in India

One of the most striking features of post-independent India has been its success in managing democratic governance in the face of religious, ethnic and linguistic diversity. But has secularism become an irrelevant word today? Is secularism under a serious threat in India?

Recent trends
In recent years, there have been various controversies regarding an attempt being made to fabricate the secular aspect of the Constitution. On the 66th Republic Day in 2015 major concerns and controversies were sparked. On the day the entire nation honours the Constitution, in an advertisement in the newspaper, the words socialist and secular were omitted. Rakesh Sinha, BJP Rajya Sabha MP through a private member bill seeks to remove the words, 'socialist' and 'secular' from the preamble! According to him, the words have become redundant in the current scenario, and removal of these words shall pave way for economic thinking without particular thought Anant Kumar Hegde's remark about the constitution again sparked major debates in Karnataka.

He went on to say, We are here to change the Constitution. Where is the country headed? Did our constitution-makers not provide sufficient safeguards to the secular element? A PIL has been filed before the honourable Supreme Court to remove the words 'socialist' and secular from the preamble.

The petition states that the 42nd Amendment Act, 1976 is antithetical to the constitutional tenets as well as the historical and cultural theme of India. This plea before the apex court is a misuse of the platform. While an ongoing crisis of a pandemic where the courts are unable to deliberate on key issues, such petitions which are not of urgent importance must be treated as an attempt to waste the precious time of the court. Waking up to such headlines one tends to wonder, is India slowly marching towards despotism?

Citizenship (Amendment) Act, 2019

On one side where attempts are being made to remove the word secular from the preamble, attempts are underway to wipe out its essence and practice. The Citizenship Amendment Act has touched the raw chords of those Indians who have grown up to see India as the melting point of a diversity of cultures and tradition. It has been a betrayal of the age-long tradition of brotherhood. As an individual, we might recognise ourselves as a Hindu or a Muslim or a Sikh or maybe an atheist too.

But we are first and foremost citizens of India and there is no alternative to that. When asked questions about the ambiguity surrounding CAA, the government has been trying to evade the questions by simply saying that Muslims form a majority in Pakistan, Bangladesh and Afghanistan so there are bleak chances that they will face religious persecution there.

From excluding Muslims from the scope of the Act to the inclusion of Afghanistan, there are innumerable fallacies in this enactment. A modernised version of the right-wing ideology is being presented under the veil of venomous propaganda of establishing a Hindu Raj in a democracy.

There cannot be enough emphasis made on how Citizenship Amendment Act is promoting the idea of an India that might soon have a State religion. From the conceptualization to the provisions and finally, the rules of implementation of the Citizenship Amendment Act, are all against the very basic structure of the Constitution, which should not be altered if a healthy and safe democracy is to be maintained.

If one tends to think like a jurist then Article 14- Right to Equality is one of the most cherished provisions from the Constitution. But these developments suggest that a popular understanding of the term 'constitutionalism' is also fading into the abyss.

Arbitrary use of force by police

The primary point in the political theory of constitutionalism is limiting the scope of powers of a government agency following the provisions of our Constitution. This is because the unlimited scope of power can easily lead to a totalitarian state and as history stands witness, such arbitrary powers never work in favour of the welfare of the citizens.

It needs to be emphasized here that our Constitution-makers have differentiated the powers, duties and rights of the three branches of the government, legislative, executive and judiciary. The police force in India is a law enforcement agency. It means the scope of its powers is limited to ensuring proper implementation of the law and not using arbitrary force.

Can constitutionalism breathe in places where police brutally attack students, Dalits are being beaten to dust, encounters become the new normal and women are raped while in police custody? These incidents have raised major concerns as being an attack on the democratic rights of citizens.

Why is constitutionalism important for democracy?

George Will rightly said:
The essence of constitutionalism in a democracy is not merely to shape and condition the nature of majorities, but also to stipulate that certain things are impermissible, no matter how large and fervent a majority might want them.

Constitutionalism can be understood as a synonym to welfare philosophy. Formulating a set of provisions in a constitution is not sufficient unless the citizens of a nation hold strong affinity to it. What we are seeing in India today is a result of the loosening ties of constitutionalism and secularism. Although there is no exhaustive checklist through which the existence of constitutionalism can be established, every feature that limits the powers of the government and helps promote welfare and empowerment are considerable points.

It is essential for our democracy as it provides a vision to see through the political systems that govern our country. There are inequalities, discrepancies and shortcoming, but there is something superior- the Constitution. The realisation of which can lead us to a better democracy.

Conclusion
For constitutions to be legitimate democratic documents which govern the interaction between the state and society, it goes without saying that certain principles must be reflected in their content, such as the separation of powers, independence of the judiciary, ultimate subjection of the military to the executive branch, and the inclusion of fundamental rights. Similarly, having a special affinity with that legitimate document is the prerequisite for constitutionalism.

It is not only about limiting, and restricting the powers of the government but about the overall welfare and empowerment of the people. Constitutionalism is the key to a progressive democracy and as Theodore Roosevelt said:
A great democracy should be progressive or it will soon cease to be a great democracy.

More than seventy years have passed since we adopted the Constitution. The nation has indeed come a long way from citing the constitution for legal remedies to citing the same provisions seeking to amend the true spirit of the nation. While India continues the battle to maintain peace and promote welfare, constitutionalism is the way ahead.

End-Notes:
  1. Rohit De, A People's Constitution, pg 1, 2018
  2. Mohammed Yasin v. Town Area Committees AIR 1952 SC 115
  3. AIR 2007 SC 861
  4. AIR 1974 SC 1389
  5. Dr. J. N. Pandey, Constitutional Law of India, pg 35 (56th edn) (2019)
  6. AIR 1973 SC 1461
  7. AIR 1960 SC 845
  8. (1994) SSC 1

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