The Constitution Matters; Indeed, It does!
New Delhi: Eighty years ago, on 15th August 1947, in the wee hours, India was liberated from the British yoke. A new nation was born and lullabied by an alien term vis, democracy, which was quite unknown to the majority of the masses. Over the years, this nation toddled, crippled, was re-raised, and moved forward; following one ripple after another. Why does India still stand on that coherent term: democracy? Or why has democracy worked well in the subcontinent — with all its differences — profound differences, warring tribes, modish maharajas and their starving subjects, linguistic diversities, cultural heterogeneity, and social and economic inequality?
In “Why Constitution Matters”, former Chief Justice D Y Chandrachud explains emphatically that the Constitution is the foundation stone on which the great edifice of Indian democracy, with its core constitutional values such as democracy, individual freedoms, and social justice, was cemented.
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Nevertheless, British lawyer and jurist Sir Ivor Jennings skeptically stated that the Indian Constitution was “too long, too rigid, too prolix and it will not last longer”, and above all, he insinuatingly commented that our Constituent Assembly was “a lawyer’s paradise”. But the Indian Constitution survived the test of time. Jennings had the misfortune of witnessing the premature death of his own progenies — he was the advisor, rather the author, of most of the provisions of the Constitution of Sri Lanka, was the constitutional advisor of Pakistan (that includes Bangladesh), and of the Kingdom of Nepal. All these countries ended up in chaos, bloody civil wars, perpetual public upheaval, coups d’état, failure of democratic institutions, and consequently, their crumbling down.
The answer lies in the actions of the country grounded in the Constitution. On this eightieth year of free India, let us walk through the Constitution which has helped us uphold our hard-earned freedom. India, a nation unique, which consists of countless castes, multiple religions, umpteen languages, and socio-cultural diversities, is united under one flag which points to a major feature — pluralism and its deep roots in the Constitution.
The Constitution protects its diversities owing to Article 14 of the Indian Constitution — equality before law and equal protection of laws. Although we have borrowed the age-old axiom “equality before law” from British common law and the principle “equal protection of laws”, which means treating its citizens equally who belong to equal status, from Section 1 of the 14th Amendment of the U.S. Constitution, we have remarkably combined it well with the social, economic, political, and cultural fabric of our society.
Article 15 offers a safeguard to Indian citizens from discrimination on the grounds of religion, race, caste, sex, or place of birth — with its enabling clause to uplift women, children, and socially backward SC/ST communities.
Article 16 of the Indian Constitution postulates equality of opportunity in matters of public employment, with its long-debated reservation for SC/ST. The Apex Court in Indira Sawhney case (1992), the famous Mandal Commission case, upheld 27% reservation for OBCs and the principle of “creamy layer”, introduced to exclude wealthy and socially advanced communities. But it shall be within the ceiling limit of 50 percent of the total number. This cap was again questioned in Janhit Abhiyan v. Union of India (2022). The Supreme Court decided that 10 percent reservation for the Economically Weaker Section, above the ceiling limit of 50 percent, is constitutionally valid, considering the Indian situation.
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Articles 25 and 26, crafted as a panoply of religious and cultural faiths, guarantee the right to freely profess, practice, and propagate religious faiths. Religious denominations have the freedom to manage their own religious affairs. Although secularism has been a part of the country’s nature, the word ‘secular’ was added by the 42nd Amendment, 1976. The makers of our Constitution did not define a secular state. B R Ambedkar said that the Indian Constitution itself is secular in nature. Prof. H V Kamath advocated that “a secular state in India should not be a religious, godless or anti-religious state but one that avoids identifying itself with a single religion” (Constituent Assembly Debates, Vol. 7), befitting a multi-religious nation with all its complexities beneath.
Unlike the South African and the U.S. Constitutions, India stayed aloof from religion. Section 15 of the Bill of Rights in the South African Constitution states that religious instruction may happen in state-aided schools and other institutions, whereas Article 28 of the Indian Constitution prohibits religious instruction in schools or colleges run or receiving governmental aid. These instances are a glimpse into the foresightedness of our Constitution makers. The citizens’ fundamental rights do not conclude here. Articles 29 and 30 of the Indian Constitution inscribe fundamental rights that protect the cultural, linguistic, and educational rights of citizens, including the marginalized. Article 29 covers any citizen, whereas Article 30 is specific to religious and linguistic minorities.
The separation of powers, or the idea of checks and balances, can be counted as the second most important feature of our Constitution. Montesquieu, in his monumental work The Spirit of the Laws, mentioned that the political power of a nation should be divided into three distinct and independent branches to prevent a constitutional crisis. Per his own remarks, “when the legislative and executive powers are united in the same person or in the same body of magistrates (judiciary), there can be no liberty”. Prof. K T Shah in the Constituent Assembly spoke that “there shall be a complete separation of powers as between the principal organs of the state viz., the legislative, executive, and the judiciary” (Constituent Assembly Debates, Vol 7). He urged for a parliamentary system with a flexible separation, rather than a rigid separation of powers as in the U.S. Constitution. It has often been marred by the usurpation of powers by executive action over parliamentary prerogatives.
In Youngstown Sheet and Tube Company v. Sawyer (1952) (Steel Seizure Case), the U.S. Supreme Court ruled that President Truman’s executive order to seize private steel mills was against constitutional provisions and therefore illegal. The executive branch cannot create laws without the authorization of Parliament (Congress, the lower house of the U.S. Parliament).
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Unlike other democratic countries, in India we have segregated the legislative, executive, and judicial powers. Each branch has its own powers and can act only within the precincts of its power. No single branch can take control over another, and it would obviously result in societal subjugation. Each organ of the state is guided by a constitutional corollary — ‘checks and balances’. Article 50 ensures that the judiciary is separate from executive shackles.
The third important feature is the role of the judicial organ: judicial review. The concept of judicial review originated in Marbury v. Madison (1803), U.S. Supreme Court. Chief Justice John Marshall declared, “it is emphatically the province and duty of the judicial department to say what the law is”; the Supreme Court can strike down laws in conflict with the Constitution.
Anticipating the infringement of fundamental rights and political limbo, the framers of the Constitution constituted Article 13 — laws inconsistent with or in derogation of fundamental rights are void; Article 32 — the ‘heart and soul’ of the Constitution as described by B R Ambedkar; and Article 226, to approach the court for violation of fundamental rights.
The fourth feature which has upheld our democratic system is the emergency clause, which was amended after the brutal days of the Emergency. After the brutal days of Emergency, Mrs. Indira Gandhi stepped down and a Gandhian — Morarji Desai (more Gandhian than Gandhi, as jokingly said in political circles) — stepped in with a landslide majority. Thereupon, the 44th Amendment of 1978 to the Constitution was made to Article 352 (National Emergency). The ground of “internal disturbance” for the proclamation of Emergency was changed to “armed rebellion”. In earlier days, verbal communication from the Prime Minister to the President was sufficient to declare Emergency. That was altered.
An Emergency could be proclaimed only with the written approval of the whole Cabinet; the Prime Minister could not solely decide on Emergency as per his/her whims. The Prime Minister is just primus inter pares — first among equals. Another key change was that Parliament must approve the Emergency within one month, rather than two months from the date of proclamation. That apart, both Lok Sabha and Rajya Sabha must pass the approval with a thumbs-up of special majority. The Lok Sabha has the absolute power to veto the Emergency. The next vital change was that both Houses must re-approve the Emergency every six months if a wanton situation exists.
As regards Article 356, State Emergency, fondly called ‘President’s Rule’, it is limited to one year unless a National Emergency is in existence in the whole or part of the state. Another emergency embargo limits the President to extend State Emergency only on the endorsement of the Election Commission that elections to the Assembly cannot be held owing to the present circumstances. As regards Financial Emergency under Article 360, it is grounded on judicial review — subject to the decisions of the court if an economic downturn exists.
The decisive decision to protect Article 20 (protection in respect of conviction for offenses) and Article 21 (protection of life and personal liberty) is remarkably an achievement of the Janata Government led by a Gandhian.
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While going through the structures that have kept our democracy active, it is inevitable to mention the amendment and basic structure of the Constitution. Hitherto, 106 amendments have been carried out in our Constitution. Article 368 envisages that the Constitution can be amended for the ever-changing needs of society. The needs and goals of this nation have changed. New technological, economic, and administrative challenges would arise inadvertently, which cannot be anticipated. The authors of our Constitution imagined that the needs of its citizens may not be stagnant but ever-changing with the efflux of time. And the Constitution cannot be changed unilaterally in any circumstance when a ruling party is in absolute majority in Parliament.
In Kesavananda Bharati v. State of Kerala (1973), the legendary lawyer Nani Palkhivala mooted the idea of the ‘basic structure doctrine’, and the trailblazer judge H R Khanna ruled that “the basic structure and the framework of the Constitution cannot be changed”. The basic structure includes fundamental rights, independent judiciary, democratic and republican form of government, separation of powers, judicial review, etc. — all unalterably added to the basic structure of our Constitution.
Last but not least, the role of universal suffrage — the longest civic engagement — should not be undervalued. Our 96.88 crore electorates finally decide the choice of legislators, which is considered to be the largest democratic election in the world. Article 326 of the Constitution ensures the voting rights of its citizens above the age of 18, irrespective of religion, race, caste, and sex. Universal adult suffrage interestingly came only later in Britain and the U.S. In Britain, it has an Indian connection: Princess Sophia Duleep Singh, the daughter of Duleep Singh, the last Maharaja of Punjab, participated in and led the violent demonstrations of Black Friday in 1910 before Parliament for women’s voting rights.
The Constitution mandates elections every five years for Lok Sabha and State Assemblies. Article 324 mandates the Election Commission of India to supervise and conduct impartial elections. Its impartiality is derived from constitutional powers — it is on par with other constitutional posts, and thus, can only be removed by impeachment by Parliament. In Anoop Baranwal v. Union of India (2023), the Supreme Court advanced the idea to ensure the impartiality of the Election Commissioner: that he must be appointed by a committee comprising the PM, the Leader of Opposition, and the Chief Justice of India. Not to mention T N Seshan’s dauntless courage to implement a Model Code of Conduct for candidates, in which he banned the use of places of worship for campaigning, reduced the upper limit of election expenses, and made a mandatory voter identity card to prevent bogus voting, etc., for free and fair elections in India.
To simply sum up, these features of our Constitution have driven India to remain a sovereign state amidst the darkest eclipses of democratic crisis and have helped it strive for success for the last eighty years.
