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Constitution And Constitutionalism. A Study Perspective In India

The Constitution is an organic living document. Its outlook and expression as perceived and expressed by the interpreters of the Constitution must be dynamic and keep pace with the changing Times. Though the basics and fundamental of the Constitution remain unalterable. The interpretation of the flexible provisions of the Constitution can be accompanied by dynamism and lean, in case of conflict, in favour of the weaker or the one who is needier.

The underlying difference between the two concepts is that a Constitution ought not merely to confer posers on the various organs of the government, but also seek to restrain those powers, Constitutionalism recognises the need for government but insists upon limitations being placed upon governmental powers.

Constitutionalism envisages checks and balances and putting the powers of the legislature and the executive under some restraints and not making them uncontrolled and arbitrary. To preserve the basic freedoms of the individual, and to maintain his dignity and personality, the Constitution should be permeated with ‘Constitutionalism'; it should have some in-built restrictions on the powers conferred by it on governmental organs.

Constitutionalism connotes in essence limited government or a limitation on government. Constitutionalism is the antithesis of arbitrary powers. Constitutionalism recognises the need for government with powers but at the same time insists that limitations be placed on those powers. The antithesis of Constitutionalism is despotism. Unlimited power may lead to an authoritarian, oppressive, government which jeopardises the freedoms of the people. Only when the Constitution of a country seeks to decentralise power instead of concentrating it at one point, and also imposes other restraints and limitations thereon, does a country have not only constitution but also constitutionalism.

Constitutions spring from a belief in limited government.
According to SCHWARTZ, in the U.S.A., the word Constitution means a written organic instrument, under which governmental powers are both conferred and circumscribed. He emphasizes that this stress upon grant and limitation of authority is fundamental. The idea of Constitutionalism is not new.

It is embedded deeply in human thought. Many natural law philosophers have promoted this idea through their writings. ‘Constitutionalism' connotes in essence limited government or a limitation on government. Constitutionalism is the antithesis of arbitrary powers. Constitutionalism recognises the need for government with powers but at the same time insists that limitations be placed on those powers. The antithesis of Constitutionalism is despotism.

Unlimited power may lead to an authoritarian, oppressive, government which jeopardises the freedoms of the people. Only when the Constitution of a country seeks to decentralise power instead of concentrating it at one point, and also imposes other restraints and limitations thereon, does a country have not only constitution but also constitutionalism. Constitutions spring from a belief in limited government. According to SCHWARTZ, in die U.S.A., the word Constitution means a written organic instrument, under which governmental powers are both conferred and circumscribed.

He emphasizes that this stress upon grant and limitation of authority is fundamental. The idea of Constitutionalism is not new. It is embedded deeply in human though. Many natural law philosophers have promoted this idea through their writings. Constitutions endure for a variety of reasons. Some endure because of a deep political consensus. In some societies the sheer balance of power amongst different political groups makes it difficult for any group to overthrow a constitutional settlement. In some cases constitutions provide an artful settlement that does not deeply threaten the power of existing elites, but nevertheless provides a mode of incorporating the aspirations of previously excluded groups.

Constitutionalism, Indian Perspective

What made Indian constitutionalism distinctive was its self-consciously cosmopolitan character. Secondly, we turn to some of the major substantive tensions that have defined the contours of constitutionalism in India, Constitutional Morality: Constitutionalism at its core signifies a politics of restraints. To understand the nature of the commitment to constitutionalism, one might turn to Ambedkar's discussion of the idea of constitutional morality, a set of adverbial conditions to which agents in a constitutional setting must subscribe.

Ambedkar invoked the phrase constitutional morality in a famous speech delivered on 4 November 1948. In the context of defending the decision to include the structure of the administration in the Constitution, he quoted at great length the classicist, George Grote. For Grote, the prevalence of constitutional morality was ‘the indispensable condition of a government at once free and peaceable'. For Grote, ‘constitutional morality' was not simply the substantive morality of a constitution, a meaning that is often attributed' to the phrase today.

It also did not imply the familiar nineteenth-century usage, where constitutional morality refers to the conventions and protocols that govern decision making where the constitution vests discretionary power or is silent. The most important goal of constitutional morality was to avoid revolution, to turn to constitutional methods for the resolution of claims. The forms of political action that had become so famous during the nationalist movement satyagraha, non-cooperation, civil disobedience were all at odds with the idea of constitutional morality. The turn to process meant that constitutional morality recognised pluralism in the deepest possible way.

A related element of constitutional morality is the suspicion of dispositive singular claims to represent the will of the people. Any claim to hero worship or personification was a claim to embody popular sovereignty; it was to reject the argumentative sensibility that constitutional morality demanded. For the Constituent Assembly, any claim to speak on behalf of popular sovereignty, to represent sovereignty, was a claim to usurp it.

No such claim could be permissible, for the chief aim of constitutional morality was to prevent any branch of government from declaring that it could uniquely represent the people. In any constitutional tradition there is a tension between the backward- and forward- looking aspects of constitutional law. The backward-looking aspects refer to constitutional texts, founders, and intentions. The forward-looking aspects refer to an ongoing conversation on the nature of social contract and the nature of social justice.

Constitutional Tensions

In its very design, many of the major tensions that have characterised Indian politics and the formation of the Indian State have actually been codified into law. Some of these tensions are familiar in constitutional law, such as the tension posed by the separation of powers. The formal amendment process, by which Parliament was empowered to amend the text in most instances, coupled with the recognition of judicial review, meant that the Constitution pulled itself in both the direction of written constitutionalism and parliamentary sovereignty.

The recognition of the right to property but also the States responsibility for land redistribution, for example, placed the tension between means and ends in law. The debate between centralisation and decentralisation was another source of friction. Several constitutional devices, from regional emergency powers to the concurrent list, meant that the tensions between functionalism and participation found constitutional manifestation.

Constitution was a charter of individual liberty. It promised freedom for individuals, but it also recognised the salience of community identities, both to redress historical injustices and to protect minorities. This inherently set up a tension in the constitutional project, on matters ranging from affirmative action and reservations to minority education institutions.

The Character of Indian Constitutionalism may be discussed under following cases:
  1. State Failure:

    The expanding scope of constitutionalism merits some reflection, and provides an interesting window on to the setting of Indian constitutional law. For one thing, the Indian Constitution is itself one of the longest constitutions in the world. A striking feature of the founding imagination was a penchant for codification. The Constitution itself was not just concerned with the rights of citizens, the limits of government power, democracy, or social justice.

    It was also very much part of a State building project, where the framers wanted to protect many institutions of the State from the vagaries of ordinary politics. This attempt to use constitutional law to compensate for massive State failure is not without its costs. Some argue that it is somewhat paradoxical that an already overburdened Supreme Court would choose to take on greater burdens by stretching constitutional law in this way.
  2. Design and Structure:

    The coherence and stability of a body of constitutional law also depends on the character of die institution from which it emanates. In countries like India, with a written constitution that provides for judicial review, that institution is the judiciary. We can expect political cleavages or political philosophies to be very clearly expressed. We can also expect them to be articulated in strikingly consistent terms over the lifetime of decisions.
  3. Law and Democracy:

    One standard way of describing the evolution of Indian constitutional law is as a transition from black letter law to a more structural reading of legal material. A second way has been to see it as a product of political compromise and negotiation. In such a context, one aspect that shapes constitutional doctrine is the idea of compromise. A constitutional culture can be subject to two kinds of compromises. The first is a compromise between norms and social forces. The second kind of compromise can be a compromise between competing and sometimes in commensurable values.

Indian Constitution Federal or Unitary?

The constitution of country may be federal or unitary in nature. In a federal constitution there is a central Government having certain powers which it exercise over the entire country. Then there are regional governments and each of such governments has jurisdiction within a region. All kinds of relations arise between the Central government and the Regional Government. India is an example of a federal Constitution. Some other federal Constitutions are: U.S.A. Canada, Australia Malaysia, Germany, etc.

A federal Constitution is a much more complicated and legalistic document than a unitary constitution which has one Central Government in which all powers of government are concentrated and which can delegate such of its powers to such of its agencies as it likes. A federal constitution must settle many details (like distribution of powers between the Central government and the regional governments) which a unitary Constitution is not concerned with. Britain, Sri-Lanka, Singapore have unitary Constitutions. The Emergency and its aftermath have brought the question of Federalism into prominence.

During the Emergency, Congress Ministries abdicated their duties to the Centre responsible State Ministries could never have advised ratification of the 39th Amendment at one or two days' notice. The existence of the Congress governments at the Centre and in a large number of States for over 25 years prevented problems of Federal Government from coming to the fore.

 However, when the Janata Party came to power at the Centre and in a large number of States, after the Parliamentary and State elections held in 1977, the few States in which Congress Ministries continued to function suddenly became aware that our Constitution was a federal one; that the States had rights of their own which could be enforced against the Centre. Recent decisions of the Supreme Court have brought to the fore the question whether our Constitution is federal.

Ever- since the decision in W.B. v. Union of India it has been the doctrine of our Supreme Court that the unitary features in our Constitution are so many that the Federal features almost disappear. In Rajasthan v. Union, Beg C.J. said: In a sense, therefore, the Indian Union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically co-ordinated, and socially, intellectually, and spiritually uplifted.

It is submitted that this view is based on an imperfect study of our own and other Federal constitutions. It will be shown in this Chapter that almost all the features on which the Supreme Court has relied to support its doctrine, will be found on examination to be features present in constitutions which are indisputably federal. In W.B. v. Union of India the majority judgment of the Supreme Court held that the Union was entitled to the coal mines vested in the State of West Bengal.

The discussion on Federalism and Sovereignty in the majority judgment is very unsatisfactory, and instead of considering it in detail, if would lead to a briefer and clearer discussion of Federalism if the so-called unitary features are considered independently and shown to be present in admittedly federal constitutions. This observation also applies to the views expressed by Beg. C.J. in Rajasthan v. Union set out above.

A theoretical discussion of Federalism is not necessary. The test laid down by Prof. Wheare in his classic work has been generally applied to our Constitution and, broadly speaking, that test can be accepted, subject to its being supplemented by the illuminating discussion of Prof. Sawer in which he rightly said that it is necessary to inquire whether a federal situation existed in a country before it adopted a federal constitution.

Writing of India, he said:
The sub-continent of India was another area which by reason of size, population, regional (including linguistic) differences and communication problems presented an obvious federal situation, if not the possibility of several distinct Nations.

The following historical account of how our Constitution adopted the federal solution amply supports Prof. Sawer's conclusion that a federal situation clearly existed in India.

To sum up:
  1. It is no objection to our Constitution being federal that the States were not independent States before they became parts of a Federation. A Federal situation existed, when the Br. Parliament adopted a federal solution in the G.I. Act, 35, and when the Constituent Assembly adopted a federal solution in our Constitution.

  2. Parliament's power to alter the boundaries of States without their consent is a breach of the federal principle, but in fact it is not Parliament which has, on its own, altered the boundaries of States. By extra constitutional agitation, the States have forced Parliament to alter the boundaries of States. In practice, therefore, the federal principle has not been violated.

  3. The allocation of the residuary power of legislation to Parliament (i.e. the Federation) is irrelevant for determining the federal nature of a Constitution. The U.S. and the Australian Constitutions do not confer the residuary power on the Federation but on the States, yet those Constitutions are indisputably federal.

  4. External sovereignty is not relevant to the federal nature of a Constitution, for such sovereignty must belong to the country as a whole. But the division of internal sovereignty by a distribution of legislative powers is an essential feature of federalism, and our Constitution possesses that feature. With limited exceptions, the Australian Constitution confers overlapping legislative powers on the States and the Commonwealth, whereas List II, Sch. VII of our Constitution confers exclusive powers of legislation on the States, thus emphasizing the federal nature of our Constitution.

  5. The enactment in Art. 352 of the emergency power arising from war or external aggression which threatens the security of India merely recognizes de jure what happens de facto in great federal countries like the U.S., Canada and Australia in times of war, or imminent threat of war, because in war, these federal countries act as though they were unitary. The presence in our Constitution of exclusive legislative powers conferred on the States makes it reasonable to provide that during the emergency created by war or external aggression, the Union should have power to legislate on topics exclusively assigned to the States and to take corresponding executive action.

    The Emergency Provisions therefore do not dilute the principle of Federalism, although the abuse of those provisions, by continuing the emergency when the occasion which caused it had ceased to exist, does detract from the principle of federal government. The Amendments introduced in Art. 352 by the 44th Amendment have, to a considerable extent, reduced the chances of such abuse.

    And by deleting the clauses which made the declaration and the continuance of emergency by the President conclusive, the 44th Amendment has provided opportunity for judicial review which, it is submitted, the Courts should not lightly decline, then as a matter of common knowledge, the emergency has ceased to exist. This deletion of the conclusive satisfaction of the President has been prompted not only by the abuse of the proclamation of emergency arising out of war or external aggression, but, even more, by the wholly unjustified proclamation of emergency issued in 1975 to protect the personal position of the Prime Minister.

  6. The power to proclaim an emergency originally on the ground of internal disturbance, but now only on the ground of armed rebellion, does not detract from the principle of federalism because such a power, as we have seen, exists in indisputably federal constitutions. Deb's Case has established that internal violence would ordinarily interfere with the powers of the Federal Government to enforce its own laws and to take necessary executive action. Consequently, such interference can be put down with the total force of the United States. And the same position obtains in Australia.

  7. The provisions of Art. 355 imposing a duty on the Union to protect a State against external aggression and internal disorder are not inconsistent with the federal principle. The War Power belongs to the Union in all federal governments, and therefore the defence of a State against external aggression is essential in any federal government. As to internal disturbance, the position reached in Deb's Case shows that the absence of an application by the State does not materially affect the federal principle. Such application has lost its importance even in the United States and in Australia.

  8. Since it is of the essence of the Federal principle that both Federal and State laws operate on the same individual, it must follow that in case of conflict of a valid Federal law and a valid State law, the Federal law must prevail and Art. 254 of our Constitution so provides with an exception noted earlier which does not affect the present discussion.

  9. It follows from what is stated in (g) above, that Federal laws must be implemented in the States and that the Federal executive must have power to take appropriate executive action under Federal laws in the State, including the enforcement of those laws. Whether this is done by setting up in each State a parallel Federal machinery of law enforcement, or by using the existing State machinery, is a matter governed by practical expediency which does not affect the Federal principle.

    In the United States, a defiance of Federal law can be, and, as we have seen, has been put down by the use of Armed Forces of the U.S. and the National Militia of the States. This is not inconsistent with the Federal principle in the United States. Our Constitution has adopted the method of empowering the Union Government to give directions to the States to give effect to the Union law and to prevent obstruction in the working of the Union law. Such a power, though different in form, is in substance the same as the power of the Federal government in the U.S. to enforce its laws, if necessary by force. Therefore, the power to give directions to the State governments does not violate the Federal principle.

  10. Article 356 (read with Art. 355) which provides for the failure of constitutional machinery was based on Art. 4, s. 4 of the U.S. Constitution and Art. 356, like Art. 4, s. 4, is not inconsistent with the Federal principle. As stated earlier, these provisions were meant to be the last resort, but have been gravely abused and can therefore be said to affect the working of the Constitution as a Federal Government. But the recent amendment of Art. 356 by the 44th Amendment, and the submission to be made later in this book that the doctrine of the Political Question does not apply in India, show that the Courts can now take a more active part in preventing a mala fide or improper exercise of the power to impose a President's Rule, unfettered by the American doctrine of the political question.

  11. The view that unimportant matters were assigned to the States cannot be sustained in face of the very important subjects assigned to the States in List II, and the same applies to taxing powers of the States, which are made mutually exclusive of the taxing powers of the Union so that ordinarily the States have independent source of revenue of then- own. The legislative entries relating to taxes in List II show that the sources of revenue available to the States are substantial and would increasingly become more substantial. In addition to the exclusive taxing powers of the States, the States become entitled either to appropriate taxes collected by the Union or to a share in the taxes collected by the Union.

In the result, the view expressed in Supreme Court judgments that the principle of Federalism has been watered down in our Constitution is not supported by an examination of its provisions when compared with corresponding provisions in admittedly federal Constitutions. For the reasons given above, the federal principle is dominant in our Constitution.

Award Winning Article Is Written By: Mr.Mohd Aqib Aslam

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