EVERY Constitution has a philosopHy of its own.
For the philosophy underlying our Constitution we must look back into the historic Objectives Resolution of Pandit Nehru which was adopted by the Constituent Assembly on January 22, 1947, and which inspired the shaping of the Constitution through all its subsequent stages. It reads thus -
"This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution:
WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign india, shall be a Union of them all; and
WHEREIN the said territories, whether With their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of Government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and
WHEREIN all powers and authority of the Sovereign Independent India, Its constituent parts and organs of Governments are derived from the people, and
Wherein shall be guaranteed and secured to all the people of India Justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith,worship, vocation, association and action, subject to law and public morality and
WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other baokwards; and
WHEREIN shall be maintained the integrity of the territory of the Republic and Its sovereign rights on land, sea, and air according to justice and the law of civilised nations
The ancient land attain Its rightful and honoured place in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind."
The aforesaid Resolution was "something more than a resolution. It is a declaration, a firm resolve, a pledge, an undertaking and for all of us a dedication"
It will be seen that the ideal embodied in the above Resolution is faithfully reflected in the Preamble to the Constitution, which, as amended in 1976,summarises the aims and objects of the constitution
The importance and utility of the Preamble has been pointed out in several decisions of our Supreme Court. Though, by itself, it is not enforceable In a Court of law, the Preamble to a Written Constitution states the objects which the Constitutlon seeks to establish and promote and also aids the legal interpretation of the Constitution where the language is found to be ambiguous.
The Preamble to our Constitution serves, two purposes:
it indicates the source from which the Constitution derives its authority
It also states the objects which the Constitution seeks to establish and promote.
As has been already explained. the Constitution of India, unlike the preceding Government of India Acts, is not a gift of Sovereign the British parliament, It is ordained by the people of India through their representatives assembled in a sovereign Constituent Assembly which was competent to determine the political future of the country in any manner it liked.
Sovereignty means the independent authority of a State. It means that it has the power to legislate on any subject; and that It is not subject to the control of any other State or external power.
The Preamble declares, therefore in unequivocal terms that the source of all authority under the Constitution is the people of India and that there is no subordination to any external authority. While Pakistan remained a British Dominion until 1956, India ceased to be a Dominion and declared herself a 'Republic' since the making of the Constitution in 1949. It means a government by the people and for the people.
On and from the 26th Jan, 1950, when the Constitution came into force, the Crown of England ceased to have any legal Or constitutional authority over India and no citizen of membership of the India was to have any allegiance to the British Crown.
But though India declared herself a Republic, she did not sever all ties with the British Commonwealth as did Eire, by enacting the Republic of Ireland Act, 1948.
In fact, the conception of the Commonwealth itself has undergone a change owing to India's decision to adhere to the Commonwealth, without acknowledging allegiance to the Crown which was the symbol of unity of the Old British Empire and also of its successor, the 'British Commonwealth of Nations'.
It is this decision of India which has converted the 'British Commonwealth' ,a relic of Imperialism, -into a free association of independent nations under the honourable name of the 'Commonwealth of Nations',
This historic decision took place at the Prime Ministers' Conference at London on April 27, 1949 where our Prime Minister, Pandit Nehru, declared that notwithstanding her becoming a sovereign independent Republic. India will continue her full membership of the Commonwealth of Nations and her acceptance of the King as the symbol of the free association of the independent nations and as such the Head of the Commonwealth."
It Is to be noted that this declaration is extra-legal and there is no mention of it in the Constitution of India. It Is a voluntary declaration and indicates a free association and no obllgation.
It accepts the Crown of England only as a symbolic head of the Commonwealth (having no functions to discharge in relation to India as belonged to him prior to the Constitution), and having no claim to the allegiance of the citizens of India.
Even if the King or Queen of England visits India, he or she will not be entitled to any precedence over the President of india. Again though as a member of the Commonwealth, India has a right to be represented on Commonwealth conferences decisions at Commonwealth conferences will not be binding on her and no treaty with a foreign power or declaration of war by any member of the Commonwealth will be binding on her without her express consent.
Hence, this voluntary association of India with the Commonwealth does not affect her sovereignty to any extent and it would be open to India to cut off that association at any time she finds it not to be honourable or useful.
The great magnanimity with which India took this decision In the face of a powerful opposition at home which was the natural reaction of the manifold grievances under the imperialistic rule, and the great fortitude with which the association has still been maintained under the pressure of repeated disappointments, the strain of baflllng international alignments and the 1976 upsurge of racialism in England, speak volumes about the sincerity of India's pledge to contribute 'to the promotion of world peace' which is reiterated in Art. 51 of the Constitution :
promote International peace and security;
maintain just and honourable relations between nations;
foster respect for International law and treaty obligations In the dealings of organised people with one another; and
encourage settlement of International disputes by arbitration."
The fraternity which is professed in the Preamble is thus not confined within the bounds of the national territory; it is ready to overflow them to reach the loftier ideal of universal brotherhood; Thus, though India declares her sovereignty to manage her own affairs, in no unmistakable terms, the Constitution does not support isolationism or Jingoism'. Indian sovereignty is consistent with the concept of 'one world' international peace and amity.
The picture of a 'democratic republic' which the Preamble envisages is democratic not only from the political but also from the social standpoint; in other words, it envisages not only a democratic form of government but also a democratic society, infused with the spirit of 'justice, liberty, equality and fraternity'.
As a form of government, the democracy which is envisaged is, of course, a representative democracy and there are in Constitution no agencies of direct control by the peorle, such as 'referendum, or 'initiative'.
The people of India are to exercise their sovereignty through a Parliament at the Centre and a Legislature in each State, which is to be elected on adult franchise and to which the real Executive, namely, the Council of Ministers, shall be responsible.
Though there shall be an elected President at the head of the Union and a Governor nominated by the President at the head of each State, neither of them can exercise any political function without the advice of the Council of Ministers, which is collectively responsible to the people's representatives in the respective Legislatures (excepting functions which the Governor is authorised by the Constitution itself to discharge In his discretion or on his individual responsibility), The Constitution holds out equality to all the citizens in the matters of choice of their representatives, who are to run the governmental machinery.
Also known as parliamentary democracy, it envisages (I) representation of the people, (ii) responsible government, and (ill) accountability of the Council of Ministers to the legislature.
The essence of this Is to draw a direct line of authority from the people through the legislature. The character and content of parliamentary democracy in the ultimate analysis depends upon the quality of persons who man the legislature as representatives of the people. The members of the legislature, thus, must owe their power directly or indirectly to the people.
The ideal of a democratic republic enshrined in the Preamble of the Constitution can be best explained with reference to the adoption of Government of the universal suffrage and the complete equality between the Sexes not only before the law but also In the political sphere. .
Political Justice means the absence of any arbitrary distinction between man and man in the political sphere. In order to ensure the 'Political' Justice held out by the Preamble, it was essential that every person in the territory of India, Irrespective of his proprietary or educational quallflcadons, should be allowed to parttcipate in the political system like any other person.
Universal adult suffrage was adopted with this object in view. This means that every five years, the members of the Legislatures of the Union and of each Stale shall be elected by the vote of the entire adult population, according to the principle-'one man, one vote'.
The offering of equal opportunity to men and women, Irrespective of their caste and creed, in the matter of public employment also implements this democratic ideal. The treatment of the minority, even apart from the constitutional safeguards, clearly brings out that the philosophy underlying the Constitution has not been overlooked by those in power.
The fact that members of the Muslim and Christian communities are as a rule being included in the Council of Ministers of the Union as well as the States, in the Supreme Court, and even in Diplomatic Missions, without any constitutional reservation in that behalf, amply demonstrates thar those who are working the Constitution have not missed Its true spirit, namely, that every citizen must feel that this is country is his own.
That this democratic Republic stands for the good of all the people is embodied in the concept of a 'Welfare State' which transpires the Directive Prtnciples of State Policy. The 'economic justice' assured by the Preamble can hardly be achieved if the democracy envisaged by the Constitution were confined to a 'political democracy'.
The State in a democratic society derives its strength from the cooperative and dispassionate will of all its free and equal citizens. Social and economic democracy is the foundation on which political democracy would be a way of life in the Indian polity
The banishment of poverty, not by expropriation of those wbo have wealth, but by the multiplication of the national wealth and resources and an equitable distribution thereof amongst all who contribute towards its production, is the aim of the State envisaged by the Directive Principles.
Economic democracy will be installed in our sub-continent to the extent that this goal is reached. In short. economic justice aims at establishing economic democracy and a 'Welfare State'.
The ideal of economic justice is to make equality of status meaningful and life worth living at its best removing inequality of opportunity and of status--social, economic and political.
Social justice is a fundamental right, Social justice is the comprehensive form to remove social imbalance by law harmonising the rival claims or the interests of different groups and/or sections in the social structure or individuals by means of which alone it would be possible to bulld up a welfare State.
Liberty, equality and fraternity have to be secured and protected with economic empowerment and political justice to all the citizens under the rule of law.
Liberty : Democracy, in any sense, cannot be established unless certain minimal rights, which are essential for a free and civilised existence, are assured to every member of the community. The Preamble mentions these essential individual rights as 'freedom of thought, expression, belief, faith and worship' and these are guaranteed against all the authorities of the State by Part III of the Constitution subject, of course, to the implementation of the Directive Principles, for the common good and the 'fundamental duties', introduced [Art. 51A]. by the 42nd Amendment, 1976.
'Liberty' should be coupled with social restraint and subordinated to the liberty of the greatest number for common happiness.
Guaranteeing of certain rights to each individual would be meaningless unless all Inequality is banished from the social structure and each individual is assured of equality of status and opportunity for the development of the best In him and the means (or the enforcement of the rights guaranteed to him.
This object is secured in the body of the Constirution, by making illegal all discriminations by the State between citizen, simply on the ground of religion, race, caste, sex or place of birth by throwing open 'public places' to all citizens by abollshlng untouchability , by abolishing titles of hunour; by offering equality of opportunity in matters relating to employment under the State; by guaranteeing equality before the law and equal protection of the laws, as justiciable rights
In addition to the above provisions to ensure civic equality the Constitution seeks to achieve political equality by providing for universal adult franchise [Art. 326] and by reiterating that no person shall be either excluded from the general electoral roll or allowed to be Included In any general or special electoral roll, only on the ground of his religion, race, caste or sex.
The realisation of so many objectives would certainly mean an expansion of the functions of the State. The goal of Society envisaged by the Constitution, therefore, is that of a 'Welfare State, and the establishment of a 'socialist state'.
That the goal of the Indian polity is socialism was ensured by inserting through the 42 Amendment the word 'socialist' in the Preamble. It has been inserted "to spell out expressly the high ideals of socialism".
It is to be noted, however, that the 'socialism' envisaged by the indian Constitution is not the usual scheme of State socialism which involves 'nationalisation' of all means of production, and the abolition of private property.
Though the word 'Socialism' is vague, our Supreme Court has observed that Its principal aim is to eliminate inequality or income and status and standards of life, and to provide a decent standard of life to the working people.
The Indian Constitution, therefore, does not seek to abolish private property altogether but seeks to put it under restraints so that it may be used in the interests of the nation, which includes the upliftment of the poor.
Instead of a total nalionalisation of all property and Industry, it envisages a 'mixed economy', but aims at offering 'equal opportunity' to all, and the abolition of 'vested Interests'.
From 1992 onwards the trend is now away from socialism to privatisation.
Investment in many public enterprises has been divested in favour of private persons and many industries and services which were reserved for the government sector have been thrown open for private enterprise.
This is in keeping with the worldwide trend after the collapse of socialism in the U.S.S.R, and East European countries. But the constitutional obligation to pay compensation to the private owner for State acquisition has been taken away by repealing Art. 31, by the Constitution (44th Amendment) Act, 1978.
Unity amongst the inhabitants of this vast sub-contment, torn asunder by a multitude of problems was the first requisite for maintaining the independence of the country as well as to make the experiment of democracy successful.
But neither the integration of the people nor a democratic political system could be ensured wnhout mfustng a spirit of brotherhood amongst the heterogeneous population, belonging to different races, religions and cultures.
The 'Fraternity' cherished by the framers of the Constitution will be achieved not only by abolishing untouchability amongst the cliJIerent sects of the same community, but by abolishing all communal or sectional or even local or provtnclal ann-social feelings which stand in the way of the unity of India.
Democracy would indeed be hollow if it fails to generate this spirit of brotherhood amongst all sections of the people - a feeling that they are all children of the same soil, of the same Motherland.
The unity and fraternity of the people of India, professing numerous, Faiths, has been sought to be achieved by enshrining guaranteeing the ideal of a 'secular State" which means that the State protects all religions equally and does not itself uphold any religion as the State religion.
The question of Secularism is not one of sentiments, but one of law. The secular objective of the State bas been specifically expressed by 42nd Amendment inserting the word 'secular' in the Preamble by the in 1976
There is no provision in the Constitution making any religion the 'established Church' as some other Constitutions do. On the other hand, the liberty of 'belief, faith and worship' promised in the Preamble is implemented by incorporating the fundamental rights of all citizens relating to 'freedom of religion' in Arts. 25-28, which guarantee to each individual freedom to profess, practise and propagate religion, assure strict Impartiality on the part of the State and its institutions towards all religions.
A fraternity cannot, however, be installed unless the dignity of each of its members Is maintained. The Preamble, therefore, says that the State, in India, will assure the dignity of the Individual. Our Supreme Court has come to hold that the right to dignity is a fundamental right,
The Constitunon seeks to achieve this object by guaranteeing equal fundamental rights to each individual, so that he can enforce his minimal rights, if invaded by anybody in a court of law.
Seeing that these Justiciable rights may not be enough to maintain the dignity of an individual if he Is not free from wants and misery, a number of Directives have been molded in Part IV of the Constitution, exhorting the State so to shape its social and economic policies that, inter alia., "all citizens, men and women equally, have the right to an adequate means of livelihood" [Art. 39(a)], "Just and humane conditions of work" [Art. 42], and "a decent standard of life and full enjoyment of leisure and social and cultural opportunities".
In order to remove poverty and to bring about a socio-economic revolution, the list of Directives was widened by the Constitution (42nd Amendment) Act, 1976, and it was provided that - in order that such welfare measures for the benefit of the masses may not be defeated any measure for the implementation of any of the Directives shall be immune from any attack in the Courts on the ground that such measure contravenes any person's fundamental rights under Art. 14 or 19.
The philosophy contained in the Preamble has been further highlighted by emphasising that each individual shall not only have the fundamental rights in Part III of the Constitution to ensure his liberty of expression, faith and worship, equality of opportunity and the like, but also a corresponding fundamental duty, such as to uphold the sovereignty, unity and Integrity of the nation, to maintain secularism and the common brotherhood amongst all the people of India.
This has been done by inserting Art, 51A, laying down ten 'Fundamental Duties', by the Constitution (42nd Amendment) Act, 1976
Combining the ideals of political, social and economic democracy with that of equality and fraternity, the Preamble seeks to establish what Mahatma Gandhi described as "the India or My Dreams"
Lengthiest written constitution:
465 articles [25 parts] and 12 schedules. This can be due
to vast geographic factors, vast historical factors,
single constitution for centre and states, dominance of
legal luminaries in the assembly.
Drawn from various constitutions of
the world: Structural part [GoI Act, 1935],
political part [British constitution].
Partly rigid and flexible
Federal with unitary bias: There
are certain federal features of the constitution viz. Two
governments, separation of powers, bicameralism, written
constitution – rigid and supreme, independent judiciary.
The non federal features are strong centre, singe
constitution, single citizenship, no equal representation
to states in upper house, destructible states, states
can’t cede from union, integrated audit, election
machinery. All India service, appointment of governor and
veto over state bills.
Parliamentary form of government:
Indian democracy is based on Westminster model i.e.
Leadership of PM, dissolution of lower house, dual
membership of Executive, Legislature is supreme, Majority
party rule. However some differences between Indian and
British systems are Indian Parliament isn’t sovereign body
unlike British and President isn’t a hereditary head but
elected.
Balance between Judicial and
Parliamentary supremacy: Indian constitution
has mentioned “Procedure established by law” which reduces
judicial review by courts unlike in USA [“due process of
law”]. Thus
Indian courts can invalidate laws only if they are
unconstitutional, but parliament can use its constituent
power to amend the constitution.
Integrated and independent judiciary:
A single system of courts enforces for both union
and state laws. Independence of courts is ensured by
security of tenure, protection against arbitrary removal,
all expense charged on the consolidated fund, ban on
employment after retirement, contempt of court.
Fundamental rights:
Justifiable by courts. Guarantee political democracy.
Inspired by USA
constitution. Protect against arbitrary laws of
legislature and tyranny of
executive. The courts can issue writs to enforce these
rights. These can be suspended during
emergency. However reasonable restrictions can be placed
on these rights.
Directive principles of state
policy: These are non justifiable, non
enforceable by courts. They are meant to
promote social, economic democracy. They are inspired by
Irish constitution.
They are also part of Instrument of instructions in GoI
Act, 1935.
Fundamental duties: These
were added by the 42nd amendment. They are
inspired from Russian
constitution. They are non justifiable and non
enforceable by courts.
Secular state: This word
was
added to the preamble by 42nd amendment.
Western concept of
secularism “Separation of church and state” doesn’t
apply to India due to its
multi-religious nature. Indian secularism is positive
“State shall treat all
religions equally”.
Universal franchise: This
was
unanimously agreed by the constituent assembly. All
people above age 18
[reduced from 21 by 61st constitution
amendment] can vote. This
ensures broad based participation in the democracy.
Single citizenship:
Irrespective
of state in which they are born or reside all people
enjoy same political
rights.
Independent bodies: Certain
bodies
have been created like CAG, EC, and UPSC etc.
Emergency provision: To
protect sovereignty, security, integrity, unity
constitution has certain
emergency powers. During emergencies, centre becomes all
powerful and states go
into its total control. This converts federal structure
into unitary without
formal amendment to the constitution [unique feature].
Constitutional recognition to local governments [73rd, 74th amendment] is also unique to India.
Fundamental rights – USA
Fundamental duties – USSR
Directive principles – Irish
Procedure established by law – Japan
Scheme of Indian federation, residuary powers – Canada
Procedure to amend constitution – South Africa
Emergency powers – Germany
Concurrent list – Australia
Liberty, equality, fraternity – French
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