Modern Constitutionalism in Post - Colonial India

CONCEPT OF MODERN CONSTITUTIONALISM IN POST-COLONIAL INDIA

To understand the philosophy of Constitutionalism in general, one must acknowledge that it’s evolutionary in nature. The central point of Constitutionalism is a ‘Limitation on Government powers by law’. According to G. Sartori, Constitutionalism restricts the arbitrary powers of the state. And, there is no satisfactory definition of Constitutionalism. Michel Rosenfeld broadly narrated that modern constitutionalism requires imposing limits on the government powers, adherence to the rule of law, and the protection of fundamental rights. Similarly, McIlwain defines “constitutionalism as the legal limits on the government towards arbitrary powers and complete political government responsibility to be governed.” In general, Constitutionalism is a limitation on government powers that are prescribed by the constitution. These limitations are imposed either by giving rights to the citizen or by placing restrictions on the state powers. The theory of limited state powers (to a certain extent) where freedom and liberty of the state form a base for constitutionalism. Thus, the essence of constitutionalism is precisely explained by “John Locke’s Theory of the Limited State”. INDIAN CONSTITUTIONALISM & JOHN LOCKE’s THEORY: Under Article 13(2) of the Indian Constitution, the government shall follow the substantive limitations and procedures laid in the constitution. Thus, the fundamental rights also restrict the state’s power to enact laws in the sense that no law can be made in contravention of fundamental rights. Besides, Indian polity clearly satisfies ‘Louis Henkin’s Theory of Constitutionalism’. And according to Louis Henkin, Constitutionalism consists of – the Government according to the Constitution; Separation of Powers; Constitutional Review; Democratic Government; Independent Judiciary; Sovereignty of the People; Legislative Limitations on Individual Rights of the citizen. Professor Faizan Mustafa while delivering his lecture; has said that ‘having a written constitution does not ensure the constitutionalism. For instance, United Kingdom does not have a written constitution but yet it is more liberal than the Indian Constitution (written). According to him, to ensure constitutionalism the ‘idea of limited state’ is much sufficient. Thus, Constitutionalism can exist without the Constitution and hence both are separate ideas. On the other hand, John Locke is an eminent proponent of the limited state theory through supporting Thomas Hobbes's conceptions on limited state theory. To understand Constitutionalism, one must study the theories of State put forth by John Locke, Thomas Hobbes, and John Austin. Categorically, Thomas Hobbes advocated ‘State Absolutism’ by comparing a state to a biblical sea monster (Leviathan); And John Locke has supported his theory and for Austin, in a true sense, if any law is not authorized by the sovereign (State) then there is no law. John Locke Distinguished ‘Social Contract Theory’; through which the rights and obligations of the people are governed by a contract which has been entered by people themselves. Consequently, this social contract which people entered into by their free consent, will not only define the rights of the people but also restricted the governmental powers. According to Locke, the state has limited powers and people have transferred three basic rights to the state by way of the social contract; which was described as ‘Inalienable Rights’. And, these rights are ‘Life, Property and Liberty’ which cannot be taken by the state and if such an act happens then people have a right to revolt. Perhaps, the state has no right to condense the rights of the people who haven’t transferred. Thus, in view of John Locke, the state powers are limited by these natural rights. Considering the Indian Constitution, the concept of constitutionalism is the antithesis to ‘Theory of Authoritarianism’ (Governance under Indira Gandhi) and ‘Weimar Constitution’ (Nazis Dictatorship). After World War II, the Indian legal system adopted the constitution and certainly developed modern constitutionalism forming the principle of limitation on government powers given under a higher law. MODERN CONSTITUTIONALISM IN INDIAN LEGAL SYSTEM: From a constitutional law perspective, the Indian legal system was developed as a mixed system making India a post-colonial country from 1947 to the 1980s, period of Jawaharlal Nehru who crafted paradigm to set the decisive components of parliamentarian democracy and socio-economic policy. Indian constitution was authored in 1950 by many Indian lawyers who have had reflected Indian polity and at that time no politician was involved in the constituent assembly. Thus, the most interesting part of the constitution drafted in 1950 is the assigning of the Indian bill of rights mainly to recognize and protect the minority’s rights. Historically, England has drafted the ‘Magna Carta’ in 1215 which was the first legal document that explains modern constitutionalism. But in India, the constitution was found four thousand years ago in age-old Indian traditions which now gained by the people as a course of colonial rule in modern times. Apparently, Indian constitutionalism proposed to be unconventional which contains many non-orthodox institutions challenging the conventional definitions of western constitutionalism. Besides, the Indian constitutional system represents an original Asian model of post-modern constitutionalism, and that detailed research in this field would be very useful for a comparative understanding of the role of constitutional law in the contemporary globalized world. In the broader sense, Constitution is just not considered as a post-colonial text but also regarded as the democratic post-war constitutionalism which is based on the new conception of the individual who is no longer seen as a mere holder of rights and protections against the State, but is always integrated into social groups. Generally, in post-constitutional India, the continued presence of cross-party inclinations was also a reality. A former Supreme Court Judge Justice P.B. Sawant in his book ‘A Grammar of Democracy’ has narrated that “a dismal account of the democratic situation in India still retains the feudalistic regime.” Indian Constitution is a constructive consolidation of the country which secures the equitable values. Constitutionalism presupposes the existence of a constitution. The word ‘Constitutionalism’ according to Greenberg Douglas; is a political process that emerges in a specific historical and cultural context and resides in the public consciousness. It involves allegiance to the limitations on the ordinary political power and overlaps with the democracy to balance state, individual and collective rights. For instance, in the US constitution particularly; Constitutionalism is a normative concept that remarkably identified with the peculiarities of the western liberal constitution. With regards to the Indian legal system, Upendra Baxi has observed Indian constitutionalism as ‘Transformative’. Besides, the theory of the transformative of Indian Constitutionalism doesn’t reflect the significant aspect of constitutional practice. He has compared Indian Constitutionalism with western constitutionalism which further argues that western constitutionalism fails to undertake transformative discourse. Reflecting on the nature of constitutionalism, Baxi has explained that constitutionalism is a set of ideologies that justifies constitutional theory and practice. While considering Indian Constitutionalism, social scientists mostly reflected on the important issues like caste discrimination, gender discrimination, communal violence, and group crisis which ultimately demand reconsideration of the constitution book and suggests its alienation. Indian Supreme Court as one of the most overburdened apex courts with unsolved cases in the world has elaborated a distinctive theory of post-modern law in contemporary Indian Constitutional law. With reference to its unwritten principles, the doctrine of the basic structure of the Constitution expands Supreme Court powers to scrutinize the constitutional amendments. This aspect develops constitutional judicial review for the doctrine of judicial construction and its extensive application. Moreover, the Supreme Court uses comparative law such as foreign precedents, legal doctrine, by quoting very often without restraint western constitutionalism. This in turn shows a post-modern approach to constitutionalism largely open to legal concepts which come from outside the national order but are much capable with the basic principles. Thus, this openness produces the widened scope of constitutional protection given to its people. In the landmark case of Kesavananda Bharati vs. the State of Kerala; the majority of six to seven judges overruled three constitutional amendments passed by the parliament under the authoritative of Indira Gandhi considering them unconstitutional on the basis that these three amendments (i.e., 24th, 25th & 29th) were causing damage to the basic structure of the Indian Constitution. Briefly, this case represents the Supreme Court's powers to scrutinize any constitutional amendments which clearly identifies if that provision causes damage to the foundations of the Indian Constitution. Constitutionalism not only circumscribes the peculiar features on limitation of government powers and secures social reforms, but also narrates the substantive realization of those features by the constitution-makers which inevitably vital as envisaged forming a functional perspective. Also, distinctive from traditional western constitutionalism, Indian constitutionalism integrates both positive and negative constitutionalism and also fits within the global south constitutionalism. According to Carl Friedrich, constitutionalism built on the simple strategy that the activities of government are organized and functioned by the people but also ensures that the government power should not be abused by those who are called upon to do the governing. Thus, constitutionalism implies sovereignty, rule of law, separation of powers, an independent judiciary, and political democracy; which in turn restricts and limits the power of the state. INDIAN CONSTITUTIONALISM AS BOTH POSITIVE & NEGATIVE NOTION: ‘Negative Constitutionalism’ is a traditional idea that fails to explain the positivity of the government’s role. Particularly in law, a negative understanding means it prevents an entity from doing a certain act. The common understanding of constitutionalism is only limiting the state powers which are already considered as negative in nature. Negative Constitutionalism essentially a constitutional structure that prevents governmental activities is not always desirable and it is harder for the government to intervene and provide healthcare and poverty reduction schemes. Especially in India being a welfare state; it is not desirable to aspire to social, economic, and political justice. Thus, J. Waldron criticizes the concept of negative constitutionalism saying that it is fundamentally flawed and is a democratic core. Well, ‘Positive Constitutionalism’ challenges the limits upon the state. It requires the effective creation and necessary institutions which ensure the well-being of its people. The positive aspect of constitutionalism needs the state to consider as a welfare state. Understating the concept of positive constitutionalism, M. P. Singh has narrated that “if a constitution ignores respect for diversity, society togetherness, accommodation; then it fails to meet the requirement of constitutionalism”. Thus, it clearly encompasses that the requiring positive and negative notion is to discharge certain constitutional obligations of the state and also withhold from engaging in activities that are hostile to the rights and liberties of their citizens. In terms of legal constitutionalism, both negative refrains of the state and positive participation of the society in the making and proceeding the state on democratic cores has been ensuring in the Indian Constitution. This ensures equal rights and participation in democratic actions of all sects of people which gives a better guarantee of constitutionalism than a mere enumeration of certain rights and duties to the citizens. According to Professor B.O. Nwabueze; the need for constitutionalism occurs when the functioning of a constitution depends on the democratic spirit such as fair play, opinions, self-restraint, and mutual accommodation of distinct interests among people. Unless the authorities are prepared to observe the limits upon governmental powers, there cannot be constitutional government. In the case of New India Assurance Co. Ltd. Vs. Nusli Neville Wadia; explaining the requirements of constitutionalism, the court has emphasized that “not only the basic principles of natural justice have to be borne in mind for proper understanding and interpretation of constitutional provisions but also principles of constitutionalism involved therein.” Hence, to survive constitutionalism it is essential to practice democratic policies and individual rights and denounce public morality.