NCERT Textbook: The Philosophy of the Constitution - UPSC PDF Download

 Page 1


220
Indian Constitution at Work
Chapter Ten
THE PHILOSOPHY OF
THE CONSTITUTION
INTRODUCTION
In this book, so far we have studied some important provisions of our Constitution
and the way in which these have worked in the last 69 years. We also studied
the way in which the Constitution was made. But have you ever asked yourself
why leaders of the national movement felt the need to adopt a constitution after
achieving independence from British rule? Why did they choose to bind
themselves and the future generations to a constitution? In this book, you have
repeatedly visited the debates in the Constituent Assembly. But it should be
asked why the study of the constitution must be accompanied by a deep
examination of the debates in the Constituent Assembly?  This question will be
addressed in this chapter. Secondly, it is important to ask what kind of a
constitution we have given ourselves. What objectives did we hope to achieve
by it? Do these objectives have a moral content? If so, what precisely is it? What
are the strengths and limitations of this vision and, by implication, the achievements
and weaknesses of the Constitution? In doing so, we try to understand what can
be called the philosophy of the Constitution.
After reading this chapter, you should be able to understand:
± why it is important to study the philosophy of the Constitution;
± what are the core features of the Indian Constitution;
± what are the criticisms of this Constitution; and
± what are the limitations of the Constitution?
2020-21
Page 2


220
Indian Constitution at Work
Chapter Ten
THE PHILOSOPHY OF
THE CONSTITUTION
INTRODUCTION
In this book, so far we have studied some important provisions of our Constitution
and the way in which these have worked in the last 69 years. We also studied
the way in which the Constitution was made. But have you ever asked yourself
why leaders of the national movement felt the need to adopt a constitution after
achieving independence from British rule? Why did they choose to bind
themselves and the future generations to a constitution? In this book, you have
repeatedly visited the debates in the Constituent Assembly. But it should be
asked why the study of the constitution must be accompanied by a deep
examination of the debates in the Constituent Assembly?  This question will be
addressed in this chapter. Secondly, it is important to ask what kind of a
constitution we have given ourselves. What objectives did we hope to achieve
by it? Do these objectives have a moral content? If so, what precisely is it? What
are the strengths and limitations of this vision and, by implication, the achievements
and weaknesses of the Constitution? In doing so, we try to understand what can
be called the philosophy of the Constitution.
After reading this chapter, you should be able to understand:
± why it is important to study the philosophy of the Constitution;
± what are the core features of the Indian Constitution;
± what are the criticisms of this Constitution; and
± what are the limitations of the Constitution?
2020-21
221
Chapter 10: The Philosophy of the Constitution
WHAT IS MEANT BY PHILOSOPHY OF THE
CONSTITUTION?
Some people believe that a constitution merely
consists of laws and that laws are one thing, values
and morality, quite another. Therefore, we can have
only a legalistic, not a political philosophy approach
to the Constitution.  It is true that all laws do not
have a moral content, but many laws are closely
connected to our deeply held values. For example, a
law might prohibit discrimination of persons on
grounds of language or religion. Such a law is
connected to the idea of equality. Such a law exists
because we value equality. Therefore, there is a
connection between laws and moral values.
We must therefore, look upon the constitution as a
document that is based on a certain moral vision. We need
to adopt a political philosophy approach to the
constitution. What do we mean by a political philosophy
approach to the constitution? We have three things in
mind.
± First, we need to understand the conceptual structure
of the constitution. What does this mean? It means
that we must ask questions like what are the possible
meanings of terms used in the constitution such as
‘rights’, ‘citizenship’, ‘minority’ or ‘democracy’?
± Furthermore, we must attempt to work out a coherent
vision of society and polity conditional upon an
interpretation of the key concepts of the constitution.
We must have a better grasp of the set of ideals
embedded in the constitution.
± Our final point is that the Indian Constitution must
be read in conjunction with the Constituent Assembly
Debates in order to refine and raise to a higher
theoretical plane, the justification of values embedded
in the Constitution.  A philosophical treatment of a
value is incomplete if a detailed justification for it is
not provided.  When the framers of the Constitution
Does it mean that all
constitutions have a
philosophy? Or is it that only
some constitutions have a
philosophy?
2020-21
Page 3


220
Indian Constitution at Work
Chapter Ten
THE PHILOSOPHY OF
THE CONSTITUTION
INTRODUCTION
In this book, so far we have studied some important provisions of our Constitution
and the way in which these have worked in the last 69 years. We also studied
the way in which the Constitution was made. But have you ever asked yourself
why leaders of the national movement felt the need to adopt a constitution after
achieving independence from British rule? Why did they choose to bind
themselves and the future generations to a constitution? In this book, you have
repeatedly visited the debates in the Constituent Assembly. But it should be
asked why the study of the constitution must be accompanied by a deep
examination of the debates in the Constituent Assembly?  This question will be
addressed in this chapter. Secondly, it is important to ask what kind of a
constitution we have given ourselves. What objectives did we hope to achieve
by it? Do these objectives have a moral content? If so, what precisely is it? What
are the strengths and limitations of this vision and, by implication, the achievements
and weaknesses of the Constitution? In doing so, we try to understand what can
be called the philosophy of the Constitution.
After reading this chapter, you should be able to understand:
± why it is important to study the philosophy of the Constitution;
± what are the core features of the Indian Constitution;
± what are the criticisms of this Constitution; and
± what are the limitations of the Constitution?
2020-21
221
Chapter 10: The Philosophy of the Constitution
WHAT IS MEANT BY PHILOSOPHY OF THE
CONSTITUTION?
Some people believe that a constitution merely
consists of laws and that laws are one thing, values
and morality, quite another. Therefore, we can have
only a legalistic, not a political philosophy approach
to the Constitution.  It is true that all laws do not
have a moral content, but many laws are closely
connected to our deeply held values. For example, a
law might prohibit discrimination of persons on
grounds of language or religion. Such a law is
connected to the idea of equality. Such a law exists
because we value equality. Therefore, there is a
connection between laws and moral values.
We must therefore, look upon the constitution as a
document that is based on a certain moral vision. We need
to adopt a political philosophy approach to the
constitution. What do we mean by a political philosophy
approach to the constitution? We have three things in
mind.
± First, we need to understand the conceptual structure
of the constitution. What does this mean? It means
that we must ask questions like what are the possible
meanings of terms used in the constitution such as
‘rights’, ‘citizenship’, ‘minority’ or ‘democracy’?
± Furthermore, we must attempt to work out a coherent
vision of society and polity conditional upon an
interpretation of the key concepts of the constitution.
We must have a better grasp of the set of ideals
embedded in the constitution.
± Our final point is that the Indian Constitution must
be read in conjunction with the Constituent Assembly
Debates in order to refine and raise to a higher
theoretical plane, the justification of values embedded
in the Constitution.  A philosophical treatment of a
value is incomplete if a detailed justification for it is
not provided.  When the framers of the Constitution
Does it mean that all
constitutions have a
philosophy? Or is it that only
some constitutions have a
philosophy?
2020-21
222
Indian Constitution at Work
chose to guide Indian society
and polity by a set of values,
there must have been a
corresponding set of reasons.
Many of them, though, may not
have been fully explained.
A political philosophy approach
to the constitution is needed not
only to find out the moral content
expressed in it and to evaluate its
claims but possibly to use it to
arbitrate between varying
interpretations of the many core
values in our polity. It is obvious
that many of its ideals are
challenged, discussed, debated and
contested in different political
arenas, in the legislatures, in party
forums, in the press, in schools and
universities. These
ideals are variously
interpreted and
sometimes wilfully
manipulated to suit
partisan short term
interests. We must,
therefore, examine
whether or not a
serious disjunction
exists between the
constitutional ideal
and its expression
in other arenas.
Sometimes, the same
ideal is interpreted differently
by different institutions. We need
to compare these differing
interpretations. Since the expression
The Japanese Constitution
of 1947 is popularly known
as the ‘peace constitution’.
The preamble states that
“We, the Japanese people
desire peace for all time and
are deeply conscious of
the high ideals controlling
human relationship”. The
philosophy of the Japanese
constitution is thus based
on the ideal of peace.
Article 9 of the
Japanese constitution
states —
1) Aspiring sincerely to an
international peace based
on justice and order, the
Japanese people forever
renounce war as a
sovereign right of the nation
and the threat or use of
force as means of settling
international disputes.
2) In order to accomplish
the aim of the preceding
paragraph, land, sea, and
air forces, as well as other
war potential, will never be
maintained…
This shows how the
context of making the
constitution dominates the
thinking of the constitution
makers.
Yes, of course, I do remember
this issue of different
interpretations of the
Constitution. We discussed it
in the last chapter, didn’t we?
2020-21
Page 4


220
Indian Constitution at Work
Chapter Ten
THE PHILOSOPHY OF
THE CONSTITUTION
INTRODUCTION
In this book, so far we have studied some important provisions of our Constitution
and the way in which these have worked in the last 69 years. We also studied
the way in which the Constitution was made. But have you ever asked yourself
why leaders of the national movement felt the need to adopt a constitution after
achieving independence from British rule? Why did they choose to bind
themselves and the future generations to a constitution? In this book, you have
repeatedly visited the debates in the Constituent Assembly. But it should be
asked why the study of the constitution must be accompanied by a deep
examination of the debates in the Constituent Assembly?  This question will be
addressed in this chapter. Secondly, it is important to ask what kind of a
constitution we have given ourselves. What objectives did we hope to achieve
by it? Do these objectives have a moral content? If so, what precisely is it? What
are the strengths and limitations of this vision and, by implication, the achievements
and weaknesses of the Constitution? In doing so, we try to understand what can
be called the philosophy of the Constitution.
After reading this chapter, you should be able to understand:
± why it is important to study the philosophy of the Constitution;
± what are the core features of the Indian Constitution;
± what are the criticisms of this Constitution; and
± what are the limitations of the Constitution?
2020-21
221
Chapter 10: The Philosophy of the Constitution
WHAT IS MEANT BY PHILOSOPHY OF THE
CONSTITUTION?
Some people believe that a constitution merely
consists of laws and that laws are one thing, values
and morality, quite another. Therefore, we can have
only a legalistic, not a political philosophy approach
to the Constitution.  It is true that all laws do not
have a moral content, but many laws are closely
connected to our deeply held values. For example, a
law might prohibit discrimination of persons on
grounds of language or religion. Such a law is
connected to the idea of equality. Such a law exists
because we value equality. Therefore, there is a
connection between laws and moral values.
We must therefore, look upon the constitution as a
document that is based on a certain moral vision. We need
to adopt a political philosophy approach to the
constitution. What do we mean by a political philosophy
approach to the constitution? We have three things in
mind.
± First, we need to understand the conceptual structure
of the constitution. What does this mean? It means
that we must ask questions like what are the possible
meanings of terms used in the constitution such as
‘rights’, ‘citizenship’, ‘minority’ or ‘democracy’?
± Furthermore, we must attempt to work out a coherent
vision of society and polity conditional upon an
interpretation of the key concepts of the constitution.
We must have a better grasp of the set of ideals
embedded in the constitution.
± Our final point is that the Indian Constitution must
be read in conjunction with the Constituent Assembly
Debates in order to refine and raise to a higher
theoretical plane, the justification of values embedded
in the Constitution.  A philosophical treatment of a
value is incomplete if a detailed justification for it is
not provided.  When the framers of the Constitution
Does it mean that all
constitutions have a
philosophy? Or is it that only
some constitutions have a
philosophy?
2020-21
222
Indian Constitution at Work
chose to guide Indian society
and polity by a set of values,
there must have been a
corresponding set of reasons.
Many of them, though, may not
have been fully explained.
A political philosophy approach
to the constitution is needed not
only to find out the moral content
expressed in it and to evaluate its
claims but possibly to use it to
arbitrate between varying
interpretations of the many core
values in our polity. It is obvious
that many of its ideals are
challenged, discussed, debated and
contested in different political
arenas, in the legislatures, in party
forums, in the press, in schools and
universities. These
ideals are variously
interpreted and
sometimes wilfully
manipulated to suit
partisan short term
interests. We must,
therefore, examine
whether or not a
serious disjunction
exists between the
constitutional ideal
and its expression
in other arenas.
Sometimes, the same
ideal is interpreted differently
by different institutions. We need
to compare these differing
interpretations. Since the expression
The Japanese Constitution
of 1947 is popularly known
as the ‘peace constitution’.
The preamble states that
“We, the Japanese people
desire peace for all time and
are deeply conscious of
the high ideals controlling
human relationship”. The
philosophy of the Japanese
constitution is thus based
on the ideal of peace.
Article 9 of the
Japanese constitution
states —
1) Aspiring sincerely to an
international peace based
on justice and order, the
Japanese people forever
renounce war as a
sovereign right of the nation
and the threat or use of
force as means of settling
international disputes.
2) In order to accomplish
the aim of the preceding
paragraph, land, sea, and
air forces, as well as other
war potential, will never be
maintained…
This shows how the
context of making the
constitution dominates the
thinking of the constitution
makers.
Yes, of course, I do remember
this issue of different
interpretations of the
Constitution. We discussed it
in the last chapter, didn’t we?
2020-21
223
Chapter 10: The Philosophy of the Constitution
of the ideal in the constitution has considerable authority
it must be used to arbitrate in conflict of interpretation over
values or ideals. Our Constitution can perform this job of
arbitration.
Constitution as Means of Democratic Transformation
In the first chapter we have studied the meaning of the
term constitution and the need to have a constitution. It is
widely agreed that one reason for having constitutions is
the need to restrict the exercise of power.  Modern states
are excessively powerful. They are believed to have a
monopoly over force and coercion. What if institutions of
such states fall into wrong hands who abuse this power?
Even if these institutions were created for our safety and
well-being, they can easily turn against us. Experience of
state power the world over shows that most states are prone
to harming the interests of at least some individuals and
groups. If so, we need to draw the rules of the game in
such a way that this tendency of states is continuously
checked. Constitutions provide these basic rules and
therefore, prevent states from turning tyrannical.
Constitutions also provide peaceful, democratic means
to bring about social transformation. Moreover, for a
hitherto colonised people, constitutions announce and
embody the first real exercise of political self-determination.
Nehru understood both these points well. The demand
for a Constituent Assembly, he claimed, represented a
collective demand for full self-determination because; only
a Constituent Assembly of elected representatives of the
Indian people had the right to frame India’s constitution
without external interference. Second, he argued, the
Constituent Assembly is not just a body of people or a
gathering of able lawyers. Rather, it is a ‘nation on the move,
throwing away the shell of its past political and possibly
social structure, and fashioning for itself a new garment of
its own making.’ The Indian Constitution was designed to
break the shackles of traditional social hierarchies and to
usher in a new era of freedom, equality and justice.
So, can we say that members
of the Constituent Assembly
were all eager to bring social
transformation? But we also
keep saying that all view points
were represented in the
Assembly!
2020-21
Page 5


220
Indian Constitution at Work
Chapter Ten
THE PHILOSOPHY OF
THE CONSTITUTION
INTRODUCTION
In this book, so far we have studied some important provisions of our Constitution
and the way in which these have worked in the last 69 years. We also studied
the way in which the Constitution was made. But have you ever asked yourself
why leaders of the national movement felt the need to adopt a constitution after
achieving independence from British rule? Why did they choose to bind
themselves and the future generations to a constitution? In this book, you have
repeatedly visited the debates in the Constituent Assembly. But it should be
asked why the study of the constitution must be accompanied by a deep
examination of the debates in the Constituent Assembly?  This question will be
addressed in this chapter. Secondly, it is important to ask what kind of a
constitution we have given ourselves. What objectives did we hope to achieve
by it? Do these objectives have a moral content? If so, what precisely is it? What
are the strengths and limitations of this vision and, by implication, the achievements
and weaknesses of the Constitution? In doing so, we try to understand what can
be called the philosophy of the Constitution.
After reading this chapter, you should be able to understand:
± why it is important to study the philosophy of the Constitution;
± what are the core features of the Indian Constitution;
± what are the criticisms of this Constitution; and
± what are the limitations of the Constitution?
2020-21
221
Chapter 10: The Philosophy of the Constitution
WHAT IS MEANT BY PHILOSOPHY OF THE
CONSTITUTION?
Some people believe that a constitution merely
consists of laws and that laws are one thing, values
and morality, quite another. Therefore, we can have
only a legalistic, not a political philosophy approach
to the Constitution.  It is true that all laws do not
have a moral content, but many laws are closely
connected to our deeply held values. For example, a
law might prohibit discrimination of persons on
grounds of language or religion. Such a law is
connected to the idea of equality. Such a law exists
because we value equality. Therefore, there is a
connection between laws and moral values.
We must therefore, look upon the constitution as a
document that is based on a certain moral vision. We need
to adopt a political philosophy approach to the
constitution. What do we mean by a political philosophy
approach to the constitution? We have three things in
mind.
± First, we need to understand the conceptual structure
of the constitution. What does this mean? It means
that we must ask questions like what are the possible
meanings of terms used in the constitution such as
‘rights’, ‘citizenship’, ‘minority’ or ‘democracy’?
± Furthermore, we must attempt to work out a coherent
vision of society and polity conditional upon an
interpretation of the key concepts of the constitution.
We must have a better grasp of the set of ideals
embedded in the constitution.
± Our final point is that the Indian Constitution must
be read in conjunction with the Constituent Assembly
Debates in order to refine and raise to a higher
theoretical plane, the justification of values embedded
in the Constitution.  A philosophical treatment of a
value is incomplete if a detailed justification for it is
not provided.  When the framers of the Constitution
Does it mean that all
constitutions have a
philosophy? Or is it that only
some constitutions have a
philosophy?
2020-21
222
Indian Constitution at Work
chose to guide Indian society
and polity by a set of values,
there must have been a
corresponding set of reasons.
Many of them, though, may not
have been fully explained.
A political philosophy approach
to the constitution is needed not
only to find out the moral content
expressed in it and to evaluate its
claims but possibly to use it to
arbitrate between varying
interpretations of the many core
values in our polity. It is obvious
that many of its ideals are
challenged, discussed, debated and
contested in different political
arenas, in the legislatures, in party
forums, in the press, in schools and
universities. These
ideals are variously
interpreted and
sometimes wilfully
manipulated to suit
partisan short term
interests. We must,
therefore, examine
whether or not a
serious disjunction
exists between the
constitutional ideal
and its expression
in other arenas.
Sometimes, the same
ideal is interpreted differently
by different institutions. We need
to compare these differing
interpretations. Since the expression
The Japanese Constitution
of 1947 is popularly known
as the ‘peace constitution’.
The preamble states that
“We, the Japanese people
desire peace for all time and
are deeply conscious of
the high ideals controlling
human relationship”. The
philosophy of the Japanese
constitution is thus based
on the ideal of peace.
Article 9 of the
Japanese constitution
states —
1) Aspiring sincerely to an
international peace based
on justice and order, the
Japanese people forever
renounce war as a
sovereign right of the nation
and the threat or use of
force as means of settling
international disputes.
2) In order to accomplish
the aim of the preceding
paragraph, land, sea, and
air forces, as well as other
war potential, will never be
maintained…
This shows how the
context of making the
constitution dominates the
thinking of the constitution
makers.
Yes, of course, I do remember
this issue of different
interpretations of the
Constitution. We discussed it
in the last chapter, didn’t we?
2020-21
223
Chapter 10: The Philosophy of the Constitution
of the ideal in the constitution has considerable authority
it must be used to arbitrate in conflict of interpretation over
values or ideals. Our Constitution can perform this job of
arbitration.
Constitution as Means of Democratic Transformation
In the first chapter we have studied the meaning of the
term constitution and the need to have a constitution. It is
widely agreed that one reason for having constitutions is
the need to restrict the exercise of power.  Modern states
are excessively powerful. They are believed to have a
monopoly over force and coercion. What if institutions of
such states fall into wrong hands who abuse this power?
Even if these institutions were created for our safety and
well-being, they can easily turn against us. Experience of
state power the world over shows that most states are prone
to harming the interests of at least some individuals and
groups. If so, we need to draw the rules of the game in
such a way that this tendency of states is continuously
checked. Constitutions provide these basic rules and
therefore, prevent states from turning tyrannical.
Constitutions also provide peaceful, democratic means
to bring about social transformation. Moreover, for a
hitherto colonised people, constitutions announce and
embody the first real exercise of political self-determination.
Nehru understood both these points well. The demand
for a Constituent Assembly, he claimed, represented a
collective demand for full self-determination because; only
a Constituent Assembly of elected representatives of the
Indian people had the right to frame India’s constitution
without external interference. Second, he argued, the
Constituent Assembly is not just a body of people or a
gathering of able lawyers. Rather, it is a ‘nation on the move,
throwing away the shell of its past political and possibly
social structure, and fashioning for itself a new garment of
its own making.’ The Indian Constitution was designed to
break the shackles of traditional social hierarchies and to
usher in a new era of freedom, equality and justice.
So, can we say that members
of the Constituent Assembly
were all eager to bring social
transformation? But we also
keep saying that all view points
were represented in the
Assembly!
2020-21
224
Indian Constitution at Work
This approach had the potential of changing the theory of
constitutional democracy altogether: according to this approach,
constitutions exist not only to limit people in power but to empower
those who traditionally have been deprived of it. Constitutions can
give vulnerable people the power to achieve collective good.
Why do we need to go back to the Constituent Assembly?
Why look backwards and bind ourselves to the past? That may be
the job of a legal historian — to go into the past and search for the
basis of legal and political ideas. But why should students of politics
be interested in studying the intentions and concerns of those who
framed the Constitution? Why not take account of changed
circumstances and define anew the normative function of the
constitution?
In the context of America — where the constitution was written
in the late 18
th
 century— it is absurd to apply the values and
standards of that era to the 21
st
 century.  However, in India, the
world of the original framers and our present day world may not
have changed so drastically.  In terms of our values, ideals and
conception, we have not separated ourselves from the world of the
Constituent Assembly.  A history of our Constitution is still very
much a history of the present.
Activity
Read again the quotes from the Debates of
the Constituent Assembly (CAD) given in
the following chapters. Do you think that
the arguments in those quotations have
relevance for our present times? Why?
 i. Quotes in Chapter two
ii. Quote in Chapter seven
Furthermore, we may have forgotten the real point underlying
several of our legal and political practices, simply because somewhere
down the road we began to take them for granted.  These reasons
have now slipped into the background, screened off from our
consciousness even though they still provide the organizational
principle to current practices. When the going is good, this forgetting
2020-21