If ever a colossus strode over the Indian legal system, it would undoubtedly be
the Constitution of India. For more than a century, people in India were
suppressed under the shackles of tyranny. The Constitution has undoubtedly been
a path-breaking document. It not only guaranteed freedom to the citizens but
also attributed meaning to the rights of each individual. Within no time since
its enforcement, it came alive in the popular imagination.
With the help of
various provisions mentioned in it, ordinary citizens began taking its recourse
and made arguments to claim their rights. Focusing on the use of the
constitution in building a strong democracy against any other social or
political propaganda, this article illustrates how attempts are being made to
renegotiate the social structure of the nation, circumvent laws, undermine the
basic structure and overbear the country with a completely different ideology to
redefine and redraft the Constitution. Exploring various judicial pronouncements
and the Indian Constitution of 1950, the article considers that
constitutionalism is the road ahead.
In the year the Constitution was enacted, a young Muslim vendor, Mohammed Yasin,
hailing from a small town of Jalalabad in North India had approached the
court. The town government had implemented a new set of bylaws under which
the sale of various commodities was licensed. And unfortunately for Yasin, only
one license was provided for the sale of vegetables and that too, to a Hindu
It was not just a license but also a pass to win a monopoly over the
market as other vegetable vendors could only sell their vegetables after paying
the license holder certain fees. Yasin applied to the Supreme Court under
Article 32 of the Constitution for issuing a writ of mandamus to compel the
lower authority to perform required duties correctly.
argument was based on the fact that the new regulation was ultra vires and it
not only violated the right of individuals to carry trade and occupation but it
hampered the secular fabric conferred to us by the Constitution.
Court held that the by-laws of a Municipal Committee charging a prescribed fee
was an order by a State authority contravening Article 19 (1)(g) Right to
practice any profession, or to carry on any occupation, trade or business. These
by-laws affect the wholesale business and must be repealed with immediate
effect. Why should Yasin's story be interesting to us today?
Yasin was perhaps one of the very first Indians to present himself before the
honourable Supreme Court for asking legal solutions to his problems. The
presence of the idea of constitutionalism and secularism is an important aspect
of his constitutional journey.
To claim his right of free trade and to remind
the town government of the scope of their powers, he questioned the legality of
the bylaws. In the very first decade of its inception, the Constitution came
alive as a part of every Indian's life but recent trends, however, suggest that
it is being misinterpreted and fabricated for social, parochial, and political
interests. Is it sufficient to have a Constitution in a country, or is it the
empathy towards the idea behind the constitution that counts?
Ideal of Constitution- ConstitutionalismWhat is constitutionalism?
How have recent times undermined the meaning and
applicability of this philosophy? The idea of constitutionalism is often
associated with the 'social contract theory' propounded by John Locke. Locke is
commonly known as the father of liberalism, for he believed that it was the
people who formed the government, and hence it is their duty to protect the
rights and ensure the welfare of every citizen. But if the government fails to
do so, the citizens have the right to question authority.
This implied that the
provisions outlined in the constitution are supreme and no authority can
supersede that. For genuine democracies, it is not only the realization of the
Constitution that is important but it is the permeation of the idea and concepts
of the Constitution in the society as a whole that is essential. Countries will
be gripped in despotism if the constitutionalism fades.
For despotism is the
antithesis of constitutionalism.
The political philosophy of constitutionalism primarily affirms that the
authority and power of government are derived from the people and the same
should be limited to the scope of the constitution. In simpler terms,
constitutionalism is the ideology behind the documented provisions in the
constitution. Nonetheless, the scope of constitutionalism is not only limited to
keeping a check on the powers of government but it is inclusive of the complete
welfare of citizens. It was way back in 1863 when Abraham Lincoln rightly said,
Government of the people, by the people, for the people.
The constitution is a holy book for a democracy, clearly outlining the
principles and rules governing the nation. Our constitution is primarily based
on that of the USA. And thus, we see that the origin of conceptualizing
constitutionalism dates back to the signing of Magna Carta. It became the first
document to compel an English king to act according to the rule of law. It not
only ensured the separation of powers but also the supremacy of law.
Constitutionalism became the antithesis to arbitrary power.
Is it possible to
have a situation wherein there is a constitution by no constitutionalism or vice
versa? Germany, for example, has a written constitution, The Basic Law of the
Federal Republic of Germany but when it was under the rule of the leader of the
Nazi party, Adolf Hitler, there was a complete absence of constitutionalism. Not
a single person could question when Hilter transformed Germany from a democracy
into a dictatorship. While on the other hand, the United Kingdom is the best
example of the presence of constitutionalism without codified provisions.
In I.R. Coelho v. Territory of Tamil Nadu and Ors.
, it was held by the
Supreme Court that:
The rule of constitutionalism is presently a legitimate standard which requires
the presence of command over the activities of governmental capacity. Implying a
guarantee that it doesn't wreck the just standards from where it derives its
authority. These popularity based standards incorporate the security of key
rights. The standard of constitutionalism advocates a check and parity model of
the partition of forces it requires a dispersion of forces. The assurance of
established rights through customary law is the primary component of
constitutionalism in India.
An important ingredient of constitutionalism in modern democracies is having
empathy towards secularism. But what is meant by being secular in a democracy
Secularism- a parameter contemporary constitutionalism
A closer look at world history reveals that the western definition of secularism
is different from how it is interpreted in India. For the longest time in
history, there was co-existence of administrative powers between the king and
the church. But owing to political reasons a divorce of powers between the king
and the Church. Hence, the western definition of secularism underlines that it
is the divorce of powers of the king and church.
In St. Xavier College v. State of Gujarat
, the Supreme Court held that
although the word 'secular state' is not expressly present in the Constitution
there can be no doubt that Constitution-makers wanted to establish such a
Thus India was always secular in nature and practice, but the word 'secular'
never appeared in the constitution until the 42nd Amendment Act in 1976. It was
in the middle of the 21-month long national emergency when through an amendment
the words 'socialist' and 'secular' were added to the preamble. With subsequent
attempts by the politicians to subvert the constitution, it was realised that
there needs to be a basic structure of the constitution which could not be
amended. By that time, everyone in India accepted that Parliament must not be
given unlimited power to amend the Constitution.
The marathon hearing of the Kesavananda Bharati v. State of Kerala
 not only
rejected the view of the courts in re Berubari case that preamble was not a
part of the constitution but also yielded the formulation of the basic structure
doctrine saving democracy and preserving the rule of law.
S.R Bommai v. Union of
 was placed before the Indian judiciary after President Ramaswamy
Venkataraman proclaimed Article 356 dismissing the Bommai government in 1989.
The Supreme Court held Secularism is the basic feature of the Constitution.
The Indian definition of secularism is clearly outlined in the preamble.
Secularism is the liberty of thought, expression, belief, faith, and worship.
The father of the constitution, Dr Ambedkar wanted to convince the world of the
Indian definition. To avoid any confusion that might arise on the scope and
meaning of secularism, our definition was mentioned clearly.
Now since The
Preamble of the constitution is not justiciable, i.e. it cannot be enforced
against the state by the citizens through the courts, a special place was
granted to this crucial concept, in Part III, i.e the Fundamental Rights
(Article 25 to 28). If the right to religion was not given the status of a
fundamental right it's position would not have been as secure as it is today.
The policy that India follows on secularism is that of 'no state religion' and
is not anti-religion.
The Indian model states that there is no state religion,
citizens who are the entity of the state have their respective religion. And
there is strict compliance of 'watchful ambivalence' and peaceful co-existence
of various religious practices.
Why should the basic structure of the
constitution be sensitive to secularism?
Before understanding the chemistry of
secularism and constitution, understanding democracy is of vital importance. The
is known to have originated in the Greek cities, notably
Athens. Democracy meaning 'rule of people' stood as an antithesis of aristocracy
meaning rule of the elite
Equality among citizens, the right to elect and
overthrow governments, and rule of law are the important characteristics of a
democracy. For contemporary democracies, especially India, which is home to
various religious cultures and traditions there is no other way to maintain
peace and have welfare other than to have the existence of healthy
constitutionalism and secularism. With the fading of secularism and
constitutionalism, unrest has started to envelop India.
Withering of constitutionalism and secularism in India
One of the most striking features of post-independent India has been its success
in managing democratic governance in the face of religious, ethnic and
linguistic diversity. But has secularism become an irrelevant word today? Is
secularism under a serious threat in India?
In recent years, there have been various controversies regarding an attempt
being made to fabricate the secular aspect of the Constitution. On the 66th
Republic Day in 2015 major concerns and controversies were sparked. On the day
the entire nation honours the Constitution, in an advertisement in the
newspaper, the words socialist and secular were omitted. Rakesh Sinha, BJP Rajya
Sabha MP through a private member bill seeks to remove the words, 'socialist'
and 'secular' from the preamble! According to him, the words have become redundant
in the current scenario, and removal of these words shall pave way for economic
thinking without particular thought Anant Kumar Hegde's remark
about the constitution again sparked major debates in Karnataka.
He went on to say, We are here to change the Constitution
. Where is the country headed? Did
our constitution-makers not provide sufficient safeguards to the secular
element? A PIL has been filed before the honourable Supreme Court to remove the
words 'socialist' and secular
from the preamble.
The petition states that the
42nd Amendment Act, 1976 is antithetical to the constitutional tenets as well
as the historical and cultural theme of India.
This plea before the apex court
is a misuse of the platform. While an ongoing crisis of a pandemic where the
courts are unable to deliberate on key issues, such petitions which are not of
urgent importance must be treated as an attempt to waste the precious time of
the court. Waking up to such headlines one tends to wonder, is India slowly
marching towards despotism?
Citizenship (Amendment) Act, 2019
On one side where attempts are being made to remove the word secular
preamble, attempts are underway to wipe out its essence and practice. The
Citizenship Amendment Act has touched the raw chords of those Indians who have
grown up to see India as the melting point of a diversity of cultures and
tradition. It has been a betrayal of the age-long tradition of brotherhood. As
an individual, we might recognise ourselves as a Hindu or a Muslim or a Sikh or
maybe an atheist too.
But we are first and foremost citizens of India and there
is no alternative to that. When asked questions about the ambiguity surrounding CAA, the government has been trying to evade the questions by simply saying that
Muslims form a majority in Pakistan, Bangladesh and Afghanistan so there are
bleak chances that they will face religious persecution there.
Muslims from the scope of the Act to the inclusion of Afghanistan, there are
innumerable fallacies in this enactment. A modernised version of the right-wing
ideology is being presented under the veil of venomous propaganda of
establishing a Hindu Raj in a democracy.
There cannot be enough emphasis made on
how Citizenship Amendment Act is promoting the idea of an India that might soon
have a State religion. From the conceptualization to the provisions and finally,
the rules of implementation of the Citizenship Amendment Act, are all against
the very basic structure of the Constitution, which should not be altered if a
healthy and safe democracy is to be maintained.
If one tends to think like a jurist then Article 14- Right to Equality is one of
the most cherished provisions from the Constitution. But these developments
suggest that a popular understanding of the term 'constitutionalism' is also
fading into the abyss.
Arbitrary use of force by police
The primary point in the political theory of constitutionalism is limiting the
scope of powers of a government agency following the provisions of our
Constitution. This is because the unlimited scope of power can easily lead to a
totalitarian state and as history stands witness, such arbitrary powers never
work in favour of the welfare of the citizens.
It needs to be emphasized here
that our Constitution-makers have differentiated the powers, duties and rights
of the three branches of the government, legislative, executive and judiciary.
The police force in India is a law enforcement agency. It means the scope of its
powers is limited to ensuring proper implementation of the law and not using
Can constitutionalism breathe in places where police brutally
attack students, Dalits are being beaten to dust, encounters become the new
normal and women are raped while in police custody? These incidents have raised
major concerns as being an attack on the democratic rights of citizens.
Why is constitutionalism important for democracy?
George Will rightly said:
The essence of constitutionalism in a democracy is
not merely to shape and condition the nature of majorities, but also to
stipulate that certain things are impermissible, no matter how large and fervent
a majority might want them.
Constitutionalism can be understood as a synonym to
welfare philosophy. Formulating a set of provisions in a constitution is not
sufficient unless the citizens of a nation hold strong affinity to it. What we
are seeing in India today is a result of the loosening ties of constitutionalism
and secularism. Although there is no exhaustive checklist through which the
existence of constitutionalism can be established, every feature that limits the
powers of the government and helps promote welfare and empowerment are
It is essential for our democracy as it provides a vision
to see through the political systems that govern our country. There are
inequalities, discrepancies and shortcoming, but there is something superior-
the Constitution. The realisation of which can lead us to a better democracy.
For constitutions to be legitimate democratic documents which govern the
interaction between the state and society, it goes without saying that certain
principles must be reflected in their content, such as the separation of powers,
independence of the judiciary, ultimate subjection of the military to the
executive branch, and the inclusion of fundamental rights. Similarly, having a
special affinity with that legitimate document is the prerequisite for
It is not only about limiting, and restricting the powers of the government but
about the overall welfare and empowerment of the people. Constitutionalism is
the key to a progressive democracy and as Theodore Roosevelt said:
A great democracy should be progressive or it will soon cease
to be a great democracy.
More than seventy years have passed since we adopted
the Constitution. The nation has indeed come a long way from citing the
constitution for legal remedies to citing the same provisions seeking to amend
the true spirit of the nation. While India continues the battle to maintain
peace and promote welfare, constitutionalism is the way ahead.
- Rohit De, A People's Constitution, pg 1, 2018
- Mohammed Yasin v. Town Area Committees AIR 1952 SC 115
- AIR 2007 SC 861
- AIR 1974 SC 1389
- Dr. J. N. Pandey, Constitutional Law of India, pg 35 (56th edn) (2019)
- AIR 1973 SC 1461
- AIR 1960 SC 845
- (1994) SSC 1