THE PHILOSOPHY OF THE CONSTITUTION 

What is meant by Philosophy of the Constitution ?

The Constitution consists of a set of laws. Although all the laws don’t have a moral value, many laws are closely connected to our deeply held values.

For example, a law prohibiting discrimination of persons on grounds of language or religion is connected to the idea of equality.

Thus constitution is a document that is based on a certain moral vision.

Therefore a political philosophy approach to the constitution (which means to understand the debates in the constituent assembly and the core values of the constitution) is needed for the following reasons:

(i).  To find out the moral content expressed in it.

(ii).  To arbitrate between varying interpretations of the many core values in our polity. For example : Sometimes, the same ideal of the Constitution is interpreted differently by different institutions. Thus the constitution can be used to arbitrate in conflict of interpretation over values or ideals. 

Constitution as Means of Democratic Transformation

Modern states are excessively powerful as they have a monopoly over force and coercion. The institutions of such states can fall into wrong hands who can abuse this power.

Therefore we need some rules that this tendency of states is continuously checked. Constitutions provide these basic rules and therefore, prevent states from turning tyrannical.

Constitutions provide peaceful, democratic ways (political self determination through elections) to bring about social transformation.

The Indian Constitution was designed to break the shackles of traditional social hierarchies and to usher in a new era of freedom, equality and justice.

According to this approach, constitutions exist not only to limit people in power but to empower those who traditionally have been deprived of it.

Why do we need to go back to the Constituent Assembly?

 In terms of our values, ideals and conception, we have not separated ourselves from the world of the Constituent Assembly.

We may have forgotten the real point underlying several of our legal and political practices. Therefore, to get a handle on current constitutional practice, to grasp their value and meaning, we need to go back to the Constituent Assembly debates.

Political Philosophy of our Constitution

It is committed to freedom, equality, social justice, and some form of national unity with emphasis on peaceful and democratic measures for putting this philosophy into practice.

Individual Freedom

As early as during the beginning of the nineteenth century, Rammohan Roy protested against curtailment of the freedom of the press by the British colonial state. Later, Indians continued to demand a free press throughout the British rule.

Now, the freedom of expression is an integral part of the Indian Constitution.

Similarly, the freedom from arbitrary arrest is also an integral part of Indian Constitution which has its roots in the infamous Rowlett Act, which sought to deny this basic freedom.

For over forty years before the adoption of the Constitution, every single resolution, scheme, bill and report of the Indian National Congress mentioned individual rights as a nonnegotiable value.

Social Justice

The Constitution provides for the provision of reservations for Scheduled Castes and Scheduled Tribes.

The makers of the Constitution believed that the mere granting of the right to equality was not enough to overcome age-old injustices suffered by these groups

Respect for Diversity and Minority Rights

The Indian Constitution encourages equal respect between communities.

But communities in India have a hierarchical relationship (as in caste) and when equal, a relation of rivalry(as in religion). Therefore, it was important to ensure that no one community systematically dominates others. 

This made it mandatory for our Constitution to recognise community based rights. For example: the right of religious communities to establish and run their own educational institutions.

Secularism

The western conception of secularism means mutual exclusion of state and religion.

This means that both religion and state must not intervene in the domain of each other.

The purpose behind this is to safeguard the freedom of individuals. For protecting the religious freedom of individuals, states should neither help nor hinder religions.

Helping religious organisations can lead to religious organisations controlling the religious freedoms of individuals and hindrance in the affairs of religious organisations would mean, the state controlling religious freedom. 

Conditions in India were different and the makers of the Constitution had to work out an alternative conception of secularism. They departed from the western model in two ways and for two different reasons:

Rights of Religious Groups

i). Constitution recognised that intercommunity equality was as necessary as equality between individuals.

ii). The Indian Constitution grants rights to all religious communities such as the right to establish and maintain their educational institutions.

iii). Freedom of religion in India means the freedom of religion of both individuals and communities. 

State’s Power of Intervention

i).  Religiously sanctioned customs such as untouchability deprived individuals of the most basic dignity and self-respect. These needed state intervention for their dissolution.

ii).  The state could also help religious communities by giving aid to educational institutions run by them.

iii). Thus, the state may help or hinder religious communities depending on which mode of action promotes values such as freedom and equality.

Universal Franchise

i). In the background of traditional hierarchies in India, implementation of Universal franchise is a big achievement.

ii).  Indian nationalism, always conceived of a political order based on the will of every single member of society.

iii). As early as the Constitution of India Bill (1895), declared that every citizen, i.e., anyone born in India, had a right to take part in the affairs of the country and be admitted to public office.

iv). Later, the Motilal Nehru Report (1928) reaffirms this conception of citizenship based on universal adult franchise.

Federalism

i).  Indian Constitution recognises the very important concept of asymmetric federalism as through articles concerning North-East (Art. 371).

ii). Despite the unitary bias of the Indian Constitution, there are important constitutionally embedded differences between the legal status and prerogatives of different sub-units within the same federation.

iii). To meet the specific needs and requirements of some sub-units, they were given special status. For example under Article 371A, local identity of people of Nagaland is protected through restrictions on immigration.

iv).  India is a multi-lingual federation and each major linguistic group is politically recognised and all are treated as equals.

National Identity

i). India strives to retain regional identities along with the national identity yet, preference was given to common identity under certain conditions.

ii).  For example the constitution rejects separate electorates based on religious identity.

iii).  Rather than forced unity, our Constitution sought to evolve true fraternity. As Sardar Patel put it, the main objective was to evolve ‘one community’.

Procedural Achievements

1. Apart from the above substantive achievements of the Constitution, there were also some procedural achievements.

2.  Inclusive approach:

(i).  The Indian Constitution reflects a faith in political deliberation.

(ii). This open-ended approach indicates the willingness of people to modify their existing preferences. It recognised value in difference and disagreement.

3. Spirit of accommodation:

(i). Many values were partially traded off for other values, in an open process of free deliberation among equals.

(ii). There was a commitment to the idea that decisions on the most important issues must be arrived at consensually rather than by majority vote.

Criticisms of the Constitution

Thus there are many achievements of the constitution. But there are some criticism as well.

1. Unwieldy Constitution:

(i). A country’s constitution is to be identified with a compact document and with other written documents with constitutional status.

(ii).  In the case of India, many details, practices and statements are included in one single document and this has made it very large in size.

(iii). For example: many countries do not have provisions for election commission or the civil service commission in the constitution. But in India, these matters are attended to by the Constitutional itself.

2.  Unrepresentative Constitution:

(i).  At the time of formation of Constituent Assembly, universal franchise was not there and most members were from the advanced sections of the society.

(ii).  There are two components of representation, voice and opinion.

(iii).  In terms of voice, the constitution was indeed unrepresentative because members of the Constituent Assembly were chosen by a restricted franchise and not by universal suffrage.

(iv).  But if we read the debates that took place in the Constituent Assembly, we find that a vast range of issues and opinions were mentioned, and this makes the constitution representative.

3.  Alien to our Conditions:

(i).  It was borrowed article by article from western constitutions and may not be in sync with the cultural ethos of the country.

(ii). But this borrowing was not blind borrowing.

(iii). Apart from it, many Indians have not only adopted modern ways of thinking, but have made these their own. The Constitution is an instrument of modern law that has been adopted by the people to address questions of dignity and justice. For example: Ban on untouchability.

(iv). When western modernity began to interact with local cultural systems, a hybrid culture began to emerge and this has the character of a different, alternative modernity.

(v). Thus, when we were drafting our Constitution, efforts were made to amalgamate western and traditional Indian values and it was a process of selective adaptation and not borrowing. 

Limitations

The Constitution of India is not a perfect and flawless document and there are many limitations to our Constitution.

First, the Indian Constitution has a centralised idea of national unity.

Second, it appears to have glossed over some important issues of gender justice, particularly within the family. 

Third, certain basic socio-economic rights were relegated to the section on Directive Principles rather than made a part of our fundamental rights. 

But these limitations are not serious enough to jeopardise the philosophy of the Constitution.,

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