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Constitution and Constitutionalism in India


Constitution and Constitutionalism
Constitution and Constitutionalism

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The Indian constitutional law holds immense historical, practical, and theoretical significance. Nearly all the issues pertinent to pondering law in contemporary constitutional democracies find their most fervent expression in the evolution of Indian constitutional law. 


India’s Constitution served as the scaffolding through which the world’s largest and one of its most contentious democracies was established. It served as the charter guiding an ancient civilization toward modernity and profound social reform. 


Furthermore, it provides the framework for managing and accommodating the intricate ethnic, religious, and linguistic diversity unparalleled by any other modern nation-state.


Indian constitutional law has been the arena where divergent ideas of development have clashed and been reimagined. 


It serves as the normative and legal framework through which the world's largest democracy navigates its own destiny. Indeed, the future of constitutionalism globally significantly hinges on the trajectory of the Indian experiment.


The Indian constitutional project can be delineated in various ways. According to its foremost historian, the project epitomised a ‘social revolution’.


Others view it as a political endeavour, signifying the sovereignty of the Indian people and their commitment to the universal principles of liberty, equality, and fraternity.


While the project does advance these goals in many respects, its overarching aims, often overlooked, encompass two meta-objectives. 


At the time of its enactment, there was a conscious recognition that in crafting a textual document, India was endeavouring to resolve substantial debates and disputes over norms and values.


Constitutionalism was perceived as a moral imperative transcending individual positions and disagreements, providing a framework for fostering a shared institutional existence amidst divergences.


The second facet of constitutionalism was its aspiration to serve Indian exigencies without being confined to any singular tradition; rather, it aimed to reflect and contribute to a global discourse on law and values. 


Amidst debates over specific doctrines, the distinctiveness of these twin ambitions and their influence on the practice of constitutionalism in India is often obscured.


In many ways, it is the institutionalisation of these practices, against formidable odds, that constitutes the paramount achievement and challenge of Indian constitutionalism.

 
 

Ambedkar's Vision and India's Commitment to Restraint


Constitutions endure for various reasons. Some persist due to a profound political consensus. In certain societies, the intricate balance of power among diverse political factions makes it challenging for any single group to overturn a constitutional settlement. 


In some instances, constitutions offer a nuanced compromise that doesn't substantially threaten the power of existing elites yet facilitates the integration of previously marginalised groups.


While determining the precise factors enabling the endurance of India’s Constitution is complex, it's worth contemplating how the historical conception of constitutionalism informs this.


What does it signify for a society to pledge allegiance to a constitution? India’s Constitution bears the imprint of a protracted nationalist movement that made pivotal choices shaping its trajectory. The foremost and most pivotal choice was the embrace of constitutionalism itself. 


The Indian nationalist movement, while harbouring radical normative aspirations, was inherently a constitutional endeavour. In its nascent stages, it conversed in the lexicon of English law. 


Even as it transformed, especially under Gandhi's leadership, into a mass movement, it remained anti-revolutionary, prioritising non-violence over overturning social order or pursuing political objectives through force. 


Despite occasional outbreaks of political violence, from various secessionist movements to Maoism, violent revolutionary movements struggled to gain mainstream legitimacy.


Thus, even if not explicitly articulated in legal terms, a constitutional grammar has characterised India’s mainstream political choices. 


Though the concept of non-violence is often associated with Gandhi, its most significant proponents have emerged from India’s most marginalised communities.


Dalits, historically the most oppressed social group in India, with ample reason to resent the systemic violence ingrained in India’s social and political fabric, have embraced a constitutional ethos. 


This, in part, is attributable to the fact that BR Ambedkar, revered as one of the architects of the Indian Constitution, hailed from the Dalit community. 


Additionally, the Constitution provided political representation and access to public employment for Dalits, embodying a commitment to social reform.


Despite the immense social violence endured by Dalits, their profound ownership of the Constitution is noteworthy. At its essence, constitutionalism embodies a politics of restraint.


This notion formed the crux of Ambedkar’s lucid exposition of the constitutional project. To grasp the essence of the commitment to constitutionalism, one might delve into Ambedkar’s elucidation of 'constitutional morality' – a set of conditions to which agents within a constitutional framework must adhere. 


Ambedkar introduced the term ‘constitutional morality’ in a seminal speech delivered on 4th November 1948. In defending the decision to incorporate the structure of administration into the Constitution, he extensively quoted the classicist George Grote. 


For Grote, the prevalence of constitutional morality was indispensable for a government to be both free and peaceful. Constitutional morality entailed paramount reverence for constitutional forms, obedience to authority within these forms, coupled with open discourse, action subject to legal constraints, and uninhibited criticism of authorities’ public acts. 


Moreover, it embodied a steadfast confidence that opponents would equally honour the sanctity of constitutional forms.


Grote’s conception of 'constitutional morality' diverged from the contemporary interpretation, eschewing a focus solely on the substantive morality of a constitution or the conventions governing decision-making in constitutional lacunae.


Instead, it centred on historical insights into constitutionalism.


Ambedkar’s reference to Grote underscored constitutionalism as a set of practices, anchored by the principle of self-restraint.


The absence of self-restraint found its starkest expression in revolution. The primary objective of constitutional morality was to avert revolution, advocating instead for the resolution of claims through constitutional means. 


Political actions emblematic of the nationalist movement, such as satyagraha, non-cooperation, and civil disobedience, were antithetical to the ethos of constitutional morality.


Prioritising due process acknowledged pluralism in its profoundest sense. Remarkably, Ambedkar emerges as equally, if not more, committed to a form of non-violence as Gandhi. 


Respect for constitutional forms constituted the primary means through which non-violent political action could manifest.


The principal challenge in any political society was arbitrating differences, though Ambedkar primarily considered differences in opinion rather than identity.


It was the consensus on constitutional processes that respected the plurality of agents. This elucidates Ambedkar's defence of excluding socialism from the Constitution. 


An inherent aspect of constitutional morality is scepticism toward claims of singular representation of popular will. Ambedkar was troubled by the notion implicit in satyagraha—that its agents embodied the collective good.


Any claim to hero worship or personification represented an assertion of popular sovereignty, contrary to the argumentative sensibility demanded by constitutional morality.


For the Constituent Assembly, any assertion to represent popular sovereignty constituted a usurpation of it. Such claims were impermissible, as constitutional morality aimed to prevent any branch of government from asserting unique representation of the people.




Evolution of Indian Constitutional Law: From Criticism to Consolidation


The Indian Constitution embodies a cosmopolitan essence in several dimensions. Primarily, it upholds universal principles of liberty, equality, and fraternity.


Yet, its cosmopolitan nature extends beyond mere principles to encompass its text, values, and jurisprudence, which intersect with major currents in global constitutional law. Initially, when promulgated, the Indian Constitution faced criticism for being un-Indian, departing notably from indigenous legal traditions. 


It diverged even from the political philosophy espoused by Gandhi, a key figure in the nationalist movement.


Instead, it emerged as a synthesis of diverse sources and traditions, deeply influenced by English Common Law institutionalised in India, the Government of India Act 1935, and borrowing elements from the Irish Constitution and American debates over due process, tailored to address distinctly Indian political challenges.


While it wielded the political authority of the nationalist movement, it risked being accused of not aligning with India’s requirements practically and of epitomising a derivative eclecticism theoretically.


The practical critique against the Constitution demands historical scrutiny. At present, it suffices to assert that the Indian Constitution has not merely endured and consolidated itself but has become an integral component of India’s national identity.


It has furnished a framework for resolving profound political disputes and is frequently invoked to assert normative claims. However, dismissing Indian constitutional law as derivative eclecticism overlooks its inherent fascination. 


Since its inception, the Indian Constitution has positioned itself at the vanguard of universalism.


The Indian nationalist movement, cognizant of the imperative to transcend nationalism, viewed Indian Independence as instrumental in fostering global unity.


For such an undertaking, it made little sense to confine normative or legal authority to a particular tradition or political contract. True freedom, it posited, entailed the liberty to assimilate any tradition or history and imbue it with one's own essence.

 
 

This expansive outlook permeates Indian constitutional law and its judicial institutions. Unconstrained by rigid adherence to specific sources, Indian courts freely draw upon jurisprudence from diverse legal traditions worldwide.


They incorporate international law principles into domestic interpretation and even transpose elements of the American First Amendment into the Indian Constitution.


While the quality of legal reasoning may vary in individual cases, engagement with Indian constitutional law transcends parochial concerns, fostering a global discourse on law, norms, values, and institutional choices.


This discourse encompasses multifaceted constitutional transformations, from delineating limits on public power and safeguarding popular sovereignty to expanding and justiciability of human rights.


Indian constitutional law has facilitated a transition from a State-led, redistributive economic model to a more liberalised, globalised economy, grappling with the complexities of a regulatory State and the tensions between legislative authority and administrative delegation. 


Amidst these transformations, constitutional law navigates a perennial tension between its retrospective roots and its prospective utility.


While anchored in textual fidelity, precedent, and the founders' spirit, Indian constitutional law creatively reinterprets constitutional provisions to address evolving societal needs. 


This negotiation exemplifies the dynamic relationship between constitutional law and political legitimation, underscoring its role as a forum for reconciling diverse tensions and conflicts within an ongoing democratic dialogue.


Despite initial criticisms of its alienation from Indian society, the Indian Constitution now permeates the fabric of Indian life. A myriad of political, administrative, and judicial matters have metamorphosed into constitutional questions adjudicated by courts.


Constitutional values and doctrine are invoked not only to assert rights or limit governmental power but also in diverse claims ranging from environmental protection to resource allocation and redressal of grievances against the State. 


Indian constitutional law’s broad institutionalisation across various spheres of life marks a significant success, documented comprehensively in this Handbook.


Future analyses of India’s remarkable democratic consolidation will inevitably incorporate the pervasive institutionalisation of legal discourse as a vital factor.


The Complexities of Indian Constitutionalism


In its inception, the Indian State and its politics were intricately woven with tensions that found embodiment in its laws. These tensions, reminiscent of constitutional doctrines, were deeply embedded within the legal framework. 


Take, for instance, the tension surrounding the separation of powers. In India, this tension revolved around the mere existence of a written constitution.


The formal amendment process vested in Parliament, along with the acknowledgment of judicial review, pulled the Constitution in conflicting directions, torn between written constitutionalism and parliamentary supremacy.


Rights, too, found themselves at the crossroads of conflicting impulses. Within the constitutional text, rights were positioned amidst the tension of rights versus qualifications.


The pursuit of universalism had to contend with the harsh realities of freedom and partition, leaving imprints of historical trauma on the Constitution. 


Additionally, the Directive Principles of State Policy introduced a new dimension to rights, contrasting with the enforceable fundamental rights. While the Directive Principles aimed at promoting substantive welfare outcomes, fundamental rights underscored the significance of procedural means, creating a tension between ends and means within the legal framework.


The debate over centralization versus decentralisation further fueled friction. Initially, a centralising vision prevailed, driven by concerns for societal security and the perception that localism posed a threat to the development of modern citizenship. 


However, over time, demands for power from grassroots levels necessitated a renegotiation of power dynamics between different tiers of government.


Constitutional mechanisms, ranging from regional emergency powers to the concurrent list, reflected the tensions between functionalism and participatory governance.


Lastly, the Constitution, while championing individual liberties, also acknowledged the significance of community identities in addressing historical injustices and protecting minorities.


This recognition inherently created tensions within the constitutional framework, particularly concerning affirmative action, reservations, and minority rights. Questions persisted: 


Were minorities exceptions deserving special consideration, or was their recognition a heightened endeavour for equal protection?


Did reservations aim to transcend caste identities or perpetuate them?


Ultimately, the constitutional project grappled with the balance between power-sharing among diverse group identities and the liberation from identity-based constraints.

 
 

Addressing State Failure through Constitutional Expansion


The expansive nature of constitutionalism in India offers insight into the complexities of Indian constitutional law. Several factors contribute to this expansion, with the length of the Indian Constitution being noteworthy. 


From its inception, there was a notable inclination towards codification, leading to routine administrative matters finding their place within the constitutional text.


Beyond safeguarding citizen rights and defining government powers, the Constitution also aimed at building and fortifying state institutions against the uncertainties of politics.


Another driving force behind the broadening of constitutional discourse is the backdrop of low state capacity in India.


This manifests in various forms, including ineffective grievance redressal by the state, legislative gridlocks, and an overwhelmed judiciary grappling with an immense caseload. 


Courts often find themselves compelled to intervene where other institutions falter, becoming mediators between societal demands and governmental limitations.


Many peculiarities and innovations within Indian constitutional law emerge from this dynamic, where necessity acts as the catalyst for invention.


However, this attempt to compensate for state failure through constitutional means is not without its challenges. Some argue that burdening an already overstretched Supreme Court with additional responsibilities might be counterproductive.


It raises scepticism about whether Indian law too readily blurs the lines between constitutional and other legal domains. Despite these concerns, the Indian experience sheds light on the potential and limitations of constitutional discourse in addressing substantive justice.


Design and Structure of Indian Constitutional Adjudication


The coherence and stability of Indian constitutional law hinge significantly on the judiciary, as it holds the mandate for judicial review within the framework of a written constitution.


Unlike some Western counterparts, the Indian Supreme Court operates with distinct characteristics. 


Judicial appointments historically exhibit little correlation with political ideologies, leading to a relatively high turnover of judges and diverse bench compositions.


Consequently, internal coherence within Indian constitutional jurisprudence is less pronounced compared to other jurisdictions, and the system lacks some classic rule of law features.


Additionally, the relationship between the Supreme Court and lower courts, particularly High Courts, shapes the Indian legal landscape.


The Supreme Court's expanded jurisdiction and liberal approach towards admitting appeals from lower courts influence the overall perception of justice delivery in India.


However, this could inadvertently undermine the constitutional stature and role of lower courts, potentially exacerbating rather than compensating for state failures.


Law and Democracy: The Dynamics of Constitutional Compromise


Indian constitutional law's evolution cannot be singularly attributed to either a black-letter law approach or political compromise. Rather, it is a nuanced interplay between normative principles, societal forces, and pragmatic compromises.


These compromises manifest in various forms, including reconciling competing values and addressing discrepancies between legal norms and social realities.


The Handbook on Indian Constitutional Law delves into these compromises, showcasing their role in advancing the constitutional project amidst diverse societal demands.


The legitimacy of Indian constitutional law is intricately linked with the dialogue between law and democracy.


Actors within the democratic framework, including judges and legislators, engage in a continual discourse aimed at upholding constitutional morality and legitimacy. 


This entails not only adherence to formal legal techniques but also a sincere endeavour to align judicial decisions with societal reason and acceptance.


In essence, constitutional law serves as a platform for ongoing conversations between law and democracy, fostering compromise to deepen the constitutional project.

 
 

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