THE IDEA OF CONSTITUTIONALISM: THEN AND NOW
Author-1: Kunal Sharma, II year of B.A.,LL.B from Faculty of Law, Aligarh Muslim University, Aligarh.
Author-2: Ayush Mudgal, II year of B.A.,LL.B from Faculty of Law, Aligarh Muslim University, Aligarh.
“WE, THE PEOPLE OF INDIA……DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION” were the words that echoed on this exact day in 1949 when the Constituent Assembly of India officially adopted the Constitution. A present that we gave to ourselves after 2 years 11 months and 18 days of profound deliberations sometimes concurring, the other times confuting but ultimately, a unanimous voice for a new India; an India where rights and autonomy are revered and individuality and liberty thrive.
Amongst the many dreams engrafted in the Constitution was a philosophy of limited authority which was against arbitrariness and abuse of power, though unwritten, the philosophy of ‘Constitutionalism’. Constitutionalism is an idea that prevents the inebriation of power. It acknowledges the need for a government with authority but also argues that such authority is subject to restrictions. In essence, an antithesis of tyranny.
The implicit vision of the framers of the Constitution is apparently visible from the explicit provisions of the text[Constitution]. The framers have provided for the separation of power between the three organs of the state, namely, judiciary, executive and legislature, thereafter establishing a system of checks and balances and hence preventing the concentration of power.
Furthermore, the fundamental rights in part III of the Constitution of India are nothing but negative restrictions on the powers of the state. Moreover, the government in power is indeed responsible and accountable to the people of India in a way that it is democratically elected for a fixed term and can be overthrown should it fail the expectations. So far as the judiciary is concerned, article 50 explicitly calls for the separation of the judiciary and the executive. Lastly, the concept of the Union and State lists enshrined in the Seventh Schedule clearly conveys the vision of federalism which is the soul of constitutionalism.
As Dr Rajendra Prasad in his concluding address to the Constituent Assembly on November 26, 1949, said,” If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. H they are lacking in these, the Constitution cannot help the country.
After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them.”.However, to utter dismay, the contemporary scenes of the country shout that the framers stand defeated and their fear was indeed a legit one. The spirit of constitutionalism seems to be already dead in the country. The abrogation of Article 370 thus depriving the erstwhile State of Jammu and Kashmir of its special character without even consulting its legislative assembly and the enactment of the three farm laws when agriculture is clearly a subject matter of state government under the seventh schedule are a couple of instances to show the continuous attack on the federal structure of the nation. Adding onto this, the use of constitutional agencies to eradicate the opposition is nothing but a sheer mockery of the Constitution. Insofar the judiciary is concerned, from the pompous language of Article 50 to a sitting SC judge publicly praising the defacto executive head of the government, where have we reached? We are witnessing a blatant dance of authoritarianism where leave alone liberty of expression, liberty of thought seems a distant dream.
To quote Prof. Faizan Mustafa(Constitutional Expert and Professor at the Faculty of Law, Aligarh Muslim University, Aligarh),” Constitution is not a writerly text but a readerly one”. The dictum of the judiciary to qualify concepts like federalism, rule of law, democracy and judicial review to be parts of the basic structure of the Constitution, a harmonious construction of these principles without an iota of doubt proves constitutionalism to be a basic tenet of the Constitution. It is about time the custodian of the Constitution[judiciay] re- realizes its responsibility of protecting the Constitution and stop succumbing to executive pressure. So far as the citizens are concerned as the then CJI, YV Chandrachud in Minerva Mills case observed, “The Constitution is a precious heritage and, therefore, you cannot destroy its identity”, though directed at the government, it equally applies to a complicit and ignorant population. It is the people of India who have given this Constitution to themselves and therefore it is their duty to preserve it and let not the vision be diluted by questioning and not submitting to those in power. After all, we want to pass a better nation to the future generations of India that is Bharat.