The aspirations of the Indian Constitution

The Constitution of India is like your physical constitution, something which you cannot do without. It inspires or embarrasses you according to your moods and your situations. You grumble against it when it prevents you from doing what you wish. You enthuse over it when it helps you to do what you wish. Our lady of the Constitution receives both praise and curse according to the moods of her suitors. When she will not mend, she is amended.

It will be quite impossible to describe in detail this phenomenon within the limited time at your and my disposal. I, therefore, propose to inform you about some of her salient aspirations.

The Constitution of India is a monumental endeavour of a Nation to avail of the experience of the great democracies of the world. While it has drawn upon the treasury of the world’s experience in constitutional experiment, it is no mere imitation but stands by itself, unique in its character and assimilation. The American Constitution provides for a Presidential system of Government with irresponsible Executive not drawn from the Legislature. The Indian Constitution combines the Presidential system with responsible Executive drawn from Parliament. The residuary powers in the American Constitution lie with the people or the States. But these residuary powers of legislation in the Indian Constitution lie with the Indian Parliament. It is a Constitution not only of India but also of the States composing it. It is the largest and the most detailed Constitution in the world with 397 Articles and 9 Schedules running into most detailed, rigid and miscellaneous spheres. The safe rule for Constitution-builders not to put anything in the Constitution which can be safely left out, has not inspired the Indian Constitution. Much that one would normally have expected to be regulated and shaped by ordinary legislation, is petrified in the Constitution. Containing as it does the most elaborate provisions of the most miscellaneous character, it is frequently providing problems of Constitutional validity and thus drawing upon it the criticism of being either embarrassing or as encouraging inefficiency. It has been suggested that the Indian Constitution is marked by a besetting suspicion of the powers of Government on the one hand and distrust of the people on the other. In other words, it is said that the Indian Constitution is half-hearted; while it proposes to guarantee fundamental rights in one breath, it dilutes in the other such rights by making all kinds of inroads upon them. It has been criticised as being a curious amalgam of individualism and collectivism. On the one hand this individualism is responsible for limiting the powers of Government in the interest of the people and their liberty while on the other hand this collectivism attempts to expand the powers of Government in order that the State may regulate economic life and restrict liberty. In such a context, the result is divided loyalty and a kind of complexity which is said to be needless.

It will, however, be unfair to judge the Constitution of India divorced from the historical situation that gave birth to it. Every Constituent Assembly has to take decisions in an atmosphere charged with urgency and haste not conducive always to wisdom. It has to take rapid decisions. Those decisions are very often stamped with the historic features of the times that produce such Constitution. The political environment created by the abdication of the British power in 1947 following the aftermath of the Second World War explains much that today strikes us as curious in the Indian Constitution. The sudden ending of a foreign rule created a situation of great urgency. The existing structures of the time could not very well be all thrown overboard at once. The present is always born of the past and there can be no present which can be bold enough to discard all the heritage of the past. One such heritage was the Government of India Act, 1935 prevailing just at the time when the Constitution was framed. Naturally that Statute had the biggest effect in providing the matrix of the present Constitution. Many of its provisions are bodily and textually incorporated in the Constitution. The result was that a whole foreign administrative machinery had to be fitted in and dovetailed into the rising hopes of a free Nation. That is the reason why brakes are found to be operating at the most unsuspected places in the Constitutional provisions. It is wrong, however, to describe this situation as defective because it has the quality of its defects. The marvel is not that there are drags on the Indian Constitution but that they are so few. They can be fewer still if they are properly administered.

The main aspirations of the Indian Constitution are contained in its luminous Preamble. It tells you that the people of India have solemnly resolved to constitute India a Sovereign Democratic Republic. That is its first aspiration. It does not insist on any particular brand of democracy and if you have recently heard of the socialistic pattern from the platform of a political party, you should know, that expression is not used in the Constitution. Then it proceeds to tell you what such Republic wishes to secure for its citizens. Heading the list of its of its prime objectives is Justice. It is not only one aspect of justice but in its totality, social justice, economic justice, and political justice. You can at once see from this priority that justice is the foundation of our new freedom. It is needless to say that such justice can only be ensured by law, order, and good government. Its second objective is liberty. It is liberty of thought, expression, belief, faith and worship. To have excluded liberty of action even in a guarded form is perhaps designed. The third aspiration of the Indian Constitution is equality of status and opportunity. What it aims at is that opportunities for the fullest development of the citizens should be equal. The capacity to avail of such equal opportunities of course will vary according to individuals for no constitutional fiat can make that capacity equal. Its next aspiration is to promote fraternity amongst the citizens assuring dignity of the individual and the unity of the Nation. The emphasis on the dignity of the individual is of capital significance and it is based on the unity of the Nation to produce that wise balance between the individual and the social.

One outstanding feature of the Indian Constitution is the provision for fundamental rights. The word “fundamental” in that context was expected to indicate inviolability by ordinary legislation. Such rights are made part of the Constitution of India with a view to make them independent of the vagaries of party legislation. Creation of fundamental rights and their incorporation in the solemnity of the Constitution marks the distrust of popular government as the safe custodian of those rights. One such right is equality before the law and equal protection of law to every person within the territory of India. It also prohibits discrimination of any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. It provides for equal opportunity for all citizens in matters relating to employment or appointment to any office under the State. It prohibits also the enforcement of any disability on the ground of untouch-ability which is made an offence punishable in law. These fundamental rights also include right to freedom of speech, expression of peaceable assembly, to form associations or unions, free movement throughout India, to acquire, hold and dispose of property, and to practise any profession or carry on any occupation, trade or business. This freedom is not an unqualified freedom but subject to reasonable restrictions. Whether the restrictions are reasonable, remains a justiciable question. Within this freedom it recognises the right of every person that he shall not be deprived of his life or personal liberty except according to procedure established by law. Fundamental rights include also right to freedom of religion. The secular character of the State is recognised in fundamental rights by providing that no religious instruction shall be provided in any educational institution wholly maintained out . of State funds. It also recognises cultural and educational rights by providing that any section of her citizens having a distinct language, script or culture shall have the right to conserve the same and that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of the State on grounds only of religion, race, caste, language or any of them. In fact, it recognises the right of minorities to establish and administer their own educational institutions of their choice. The fundamental rights recognise right to property and right to Constitutional remedies. Right to property is at this moment the subject of a proposed Constitutional amendment facilitating State acquisition of private properties by excluding the amount of compensation from review by the Courts. Right to Constitutional remedies include power granted to the Supreme Court of India to issue corrective Writs or orders for enforcing any of the fundamental rights.

Illogically enough Fundamental Rights include abolition of titles and preventive detention. They are not rights but obligations. No Constitution in the world has yet had the courage to provide the charter of essential obligations and all recorded process of constitutional thinking has been warped by the obsession of rights. For my own part I should like a Constitution which will contain a chapter on fundamental obligations far too frequently forgotten in the modern age.

Fundamental rights are in the nature of restrictions on legislative and executive powers. One of the main controversies of the present day is whether the enunciation of the fundamental rights in the Constitution has succeeded in achieving its object. One thing is clear that this Constitutional Chapter is the most litigated document to the embarrassment of the citizen and administration alike and does not appear to have served either the cause of practical administration or of good government. Fundamental rights are bound to be in forms of general propositions. It is well known that a general proposition is always an invitation to litigation.

Notable aspirations of the Indian Constitution are to be found in the directive principles of State policy that it enunciates. There you find very definite aspirations clearly formulated. Here it sets out a more detailed objective than in the Preamble. It declares that the State shall strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice — social, economic and political — shall inform all institutions of the natural life. You will notice that the first accent here again is ‘justice’. Justice is the dominant aspiration of the Indian Constitution. It has laid down in this part of the Indian Constitution that the State shall direct its policy to secure adequate means of livelihood for her citizens, for distribution of the ownership and control of the material resources of the community so as best to subserve the common good and to prevent the operation of any economic system which results in the concentration of wealth and means of production to the common detriment. It announces equal pay for equal work for both men and women and protection of children and provision for securing just and humane conditions of work. One of its directive principles is to assure living wages for labourers, peasants and workers and to promote cottage industries on individual or co-operative basis in rural areas. Its declared policy is to take steps to organise village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. Finally, it recognises within the limits of its economic capacity the obligations of the State to provide for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disabled men and in other cases of undeserved want. As you will find from the nature of these directive principles, they represent the best ideals of a welfare and service State and indicate the high water-mark of a liberal and advanced political philosophy.

These directive principles, however, although enunciated as principles, have a tendency to look like the election promises of a party before the polling booth because they cannot be enforced by the Courts or by any machinery in the State. They remain an affirmation of faith and of policy. It has, therefore, been criticised on that ground. At the same time it is good to remember that the Constitution has many commands that are not enforceable by Courts because they clearly fall outside the conditions and purposes that circumscribe judicial action. The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action and ultimately on the vigilance of the people in exercising their political rights. The idea of the directive principles of State policy are taken from the Irish Constitution which in its turn was inspired by the Constitution of the Republican Spain. The experience, however, of these two countries has not been inspiring from this point of view. In Spain, the Republican Constitution was followed by the Civil War, and in Ireland a particular statesman was accused of writing into the Constitution the policy of his own party. Nevertheless, it appears that in an age such as ours where idealogical conflicts are apt to” unbalance men, it is good to have declared objectives even as remote reminders in trying times of stress and confusion.

The ‘Indian Constitution’ covering the lives of millions of citizens whose political training in democracy cannot be said to have been very pronounced in the last 500 years preceding this Constitution took a very bold step when it declared that the elections to ‘Lok-Sabha’ and Legislative Assembly should be on the basis of adult suffrage. The Constitution provides that every person who is a citizen of India and who is not less than 21 years of age, shall be entitled to be registered as a voter at the election. In the annals of democracy it is difficult to find a bolder step, especially when one considers that education in the three R’s is confined to hardly a tenth of the Indian population. The experience of the last 5 years has wholly justified these aspirations of the Indian Constitution and the trust that it placed in the people of India. The biggest democratic election in the world took place here in this country with a steady orderliness which was a marvel for the whole world. It shows how the heart of India can respond to the demands of the time and how the people or the masses of India, in spite of all the domestic and foreign criticisms that are levelled against them, can rise to uphold the political trust placed in them.

Many of you who are associated with business, commerce and industry in the Country may want to know what is the economic policy or the economic aspiration of the Indian Constitution. Very well might you ask that question because what with private sector, public sector and national sector the picture is one of confused jurisdictions. To begin with, the Constitution provides that commerce and intercourse throughout the territory of India shall be free. If Parliament by law wishes to impose restrictions on such freedom between one State and another or within any part of India, it can only do so in public interest. Neither Parliament nor any legislature has power to make any law giving preference in this respect to one State or another. Secondly, it is a fundamental right in this country recognised by the Constitution that all citizens shall have the right to practise any profession or to carry on any occupation, trade or business. That right cannot be interfered with by any organ in the State, except of course in the interest of the general public and that again must be a reasonable restriction which, in case of conflict, will have to be justified before a Court of law. The Constitution permits individual enterprise as an integral part of the fundamental rights. At the same time the Constitution also recognises, though not as a fundamental right, State enterprise and State control of commerce, industry and business, and the instruments used for this purpose are compulsory public acquisition, imposition of regulatory conditions about labour and employment and by control of profits. This is necessary because the announced directive principle of the State policy is not to allow the operation of any economic system to result in the concentration of wealth and the means of production to the common detriment. The great merit of the Indian Constitution is that it is free from any doctrinaire economics and instead of enslaving or committing the country to any particular economic dogma it attempts to avail and utilise the experience of different economic principles to realise national prosperity on the widest and wisest basis of distribution.

The Constitution of a country is the supreme law of the land and is the common denominator with reference to which all Statutes, legislation and every action in the country have to be tested. The necessary national discipline to accept that situation is lacking to-day as seen from the exhibition of frequent uniformed resentment on this crucial point. In a nation governed by a written political constitution it is vain to look for supremacy in Parliament. The Supremacy is of the Constitution. The Supremacy of Parliament is an archaic political philosophy born at Runnymede as the revolt of a people against a tyrant king. While its continued necessity may be imaginable in a country still governed by a monarch against the monarch’s possible misbehaviour, that doctrine is wholly out of place in a Peoples Republic where the people themselves as sovereigns have given them a constitution. The Constitution, therefore, is the supreme verdict of the people and all other organs must subserve that Constitution. Those who think of Parliamentary supremacy in a written political constitution are, therefore, thinking in terms of an outmoded political philosophy. If you want Parliamentary supremacy, you will have to scrap the Constitution. If any such Statute or legislation violates the Constitution, then it is void and of no effect. In a land with a written Constitution, therefore, it is of the first importance that Legislators & Parliamentarians should carefully study the Constitution, so that the laws that they make are in conformity with it. It is one of their sacred obligations.

But no society or Nation can make an eternal Constitution for itself. There is no eternity in Constitutional Jurisprudence which is always temporal solving and re-solving the variable human purpose by a process of continued adjustment of common good and communal living. Occasions, therefore, arise in the history of Nations governed by written political Constitutions when they feel that national welfare demands change in the Constitution to meet a particular objective. Therefore, it is necessary to provide in the Constitution itself the means by which amendments of the Constitution can be achieved. The means must be such that such Constitutional amendments should not be too facile to suit the passing whims of any particular political party which happens to be in power in the Government at the time, for in that event the Constitution will be reduced to the level of an ordinary Statute or law of the country which it is not. The very purpose of a Written Constitution will, in that event, be defeated. For the main reason of a written Constitution in a country of diverse interests is to withdraw certain matters from the vicissitudes of political controversy over ordinary legislation, to place them beyond the reach of political majorities and bureaucratic officials and to establish them as legal -principles whose infringement, the Courts will correct and, if need be, prevent.

The principle of amendment recognised in the Indian Constitution may be briefly described. Four amendments of the Constitution in five years of its life have focussed public attention on this point. A Constitutional amendment may be initiated only by the introduction of a Bill for that purpose in either- House of Parliament and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution stands amended in accordance with the terms of that Bill. That is the general principle of the amendment. But there is further restriction on the general principle when Constitutional amendments affect some special spheres such as distribution of legislative powers when the amendment is also required to be ratified by the Legislatures of not less than one-half of the Part A and B States before the Bill for amendment is presented to the President for his assent.

Wise statesmanship will have to avoid two mistakes, one of the right and the other of the left. It will be folly to think that a Constitution should not and cannot be changed. A human society cannot be so restrained. No past can mortgage the future for ever. The other mistake to avoid is that you cannot change your Constitution every year, if you wish for any reasonably stable social order. The principle is, you should not change the Constitution unless the situation is impossible and Constitutional amendment should be the last resort and not the first impulse to get rid of every obstruction.

The judicial power is another striking feature of the Indian Constitution. I have already told you that the Supreme Court of India is vested with the power to issue corrective and mandatory Writs to enforce the fundamental rights, of her citizens. The High Courts of each State are also given powers to issue corrective and mandatory Writs and orders not only to enforce the fundamental rights but also for other purposes. Such judicial power is extensive and the only restrictions upon it are those that are expressly provided in the Constitution such as, in respect of elections and procedure in Parliament and Legislatures. This judicial power includes the power of judicial review of legislation to test whether such legislation conforms to the Constitution or not. It has been the subject of great controversies. Powerful schools of thought contend either way. One school believes in unlimited judicial review of legislation as the ultimate resort of people governed under a Written Constitution. The other school of thought believes that such power should not be accorded to the Courts but should be reserved for Parliament and Legislatures. There will not be time enough to go into the varied implications of this great controversy. Attempts have been made to exclude subjects from the arena of judicial decision and to make acts and conducts not justifiable. All that I need tell you to-day is that for good or ill, Indian Constitution has expressly recognised power of judicial review of the acts and conduct of many other organs of Government. It is one of its fundamental features.

The principle behind it is that the Constitution assigns specific functions to the Legislature, to the Executive and the Judiciary. It is the aspiration of the Constitution that each will respect the functions of the other, that no one will encroach upon the jurisdiction of the other and, above all, no one organ should try to rival the other and they should be animated by the one common desire of service to the people under the Constitution. To the Legislature, no less than to the Courts, is committed the guardianship of deeply cherished values. To fight out the wise use of legislative authority in the forum of public opinion and before Parliament and Legislatures rather than to transfer such a contest to the judicial arena helps to vindicate, the self-confidence and self-reliance of a free people. Long denial of political power over centuries is responsible to-day for the inevitable phenomenon where we find power, which we have obtained after such long and arduous seeking, has gone into our heads. Those who have studied carefully the pathology of power are not surprised at this phenomenon. For they also know that if that power is to last effectively for public good, then it will have to learn by experience the inner self-operating mechanism of restraint or else it will soon dissipate itself. Time perhaps is fast approaching when it is good for us to remind ourselves that we need not burn the barn to roast the pig. Disinterested zeal for the public good is riot invariably or even necessarily the guarantee of wisdom or of the rectitude of the methods pursued under the prod-dings of that zeal.

No doubt it is true that judicial review of legislation tends to encourage Government by litigation instead of government by political machinery. No doubt it is equally true that the place to meet and defeat unwise legislation is in Parliament and Legislature or in the arena of public opinion. But the experience of the world has taught that with the organisation of political parties and of public opinion many a voice that needs to be heard is not heard. It is the lesson of history that the most valued liberties presuppose an independent Judiciary through which alone these liberties can be vindicated. There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is the law, then every man can. That means, first, chaos, then tyranny, and then collapse. Legal process is an essential part of the democratic process.

In a State representing any kind of social order, there are bound to be conflicts and some machinery has to be established which must of necessity be regarded as the final arbiter of those disputes. Such an arbiter may not be infallible because no human nature is infallible. But the disputes have to be composed at one stage or other and the Nation has to acquire the discipline to submit to a final decision from a particular source because it cannot afford to live through perpetual turmoil. That machinery is the Judiciary in a democracy. It is no shame for a democratic Government to find that some of its own acts and conduct when challenged in the Courts by its own citizens are found to be invalid and illegal. Rather it is and should be the pride of a democratic government that it maintains and upholds independent Courts of justice where even its own laws can be tested. A Government writes its own epitaph when it refuses to acknowledge its errors and render justice to the individual or society against itself. To introduce a sense of competition between the Judiciary and the Legislature and to foment rivalry between them is to do the worst harm to the cause of Constitutional Progress and to national discipline. No democracy can last without a rule of law, and a democracy that has not learnt to observe that rule of law as finally determined by one of its own organs set up by its own Constitution cannot be expected to last. At the same time a democracy that has to rely solely on Courts to save itself from unwise and unfair legislation becomes a weak democracy. The people will have to be vigilant and that vigilance is a continued necessity for the preservation of democracy.

The increasing tendency to-day to shift this straggle between political parties and ideologies from the Parliamentary arena to the Courts of Justice is on the one hand fraught with great danger to the judicial institutions and on the other hand demanding a judicial statesmanship never before requisitioned in legal history. The independence of the judiciary, therefore, has acquired today new dimensions. That independence of the Judiciary to-day requires to be maintained not only against abuse of powers by other branches of Government but also and no less against the pressure of the mobs. It has to rise above the clamour of the passing day. A judiciary that can only tell the Government when it is wrong and not the people when they are wrong, is not an independent but a timid Judiciary. To be numerous is not necessarily to be just or even to be right. Justice does not trim its sails to flap with every passing wind. It is the one institution that has to stand solid and four square to all the winds that blow and beat upon its fearless categories.

The Constitution of India endeavours to secure the independence of the judiciary by setting up the well-known constitutional mechanisms. One of its major directives of the State Policy is to separate the judiciary from the executive in the public services. A Supreme Court Judge or a High Court Judge holds office until he attains the age of 65 or 60 years respectively. They are not removable by the Executive and the only way they can be removed is by an order of the President passed after an address by each House of Parliament supported by a majority of not less than 2/3rds of the members of the House present and voting had been presented in the same session for removal on the ground of proved misbehaviour or incapacity. Their salaries are non-votable and are charged on the Consolidated Fund. No discussion is permitted by the Constitution in Parliament or Legislature regarding the conduct of any Judge of the Supreme Court or of the High Court. These are provisions designed to protect the independence of the Judges. There is, however, one provision in the Indian Constitution which is rather unique, and unknown to any other Constitution in the world and that is it forbids any Judge of the Supreme Court or of the High Court either after resignation or even after retirement to plead or act in any Court or authority in India. While this provision was intended to maintain the dignity of this great office it has a very deleterious effect. All that was necessary for maintenance of the dignity of that judicial office was to prohibit the Judge from practising before the Court of which he was the Judge. To prevent him from practising anywhere in India before any Court of Authority is an unjustified confiscation of a lifetime’s qualifications which instead of preserving his independence has emasculated that independence because he is put under fear that if he resigns he will not be able to earn his livelihood by practising the very profession for which he was trained and qualified for life. If he retires, then he has to seek employment elsewhere. His pension subject to taxation drives him to seek employment to have sufficient for himself and the family. No other person suffers this confiscation of his professional qualifications. Engineers, Doctors, Accountants who hold high offices in the State remain free to practise their professions after resignation or retirement but not so the Judges.

These are some of the major aspirations of our Indian Constitution.

Author Name: Hon'ble Mr Justice P B MukherjiÂ