Constitution and Constitutionalism | Law Optional Notes for UPSC PDF Download

Introduction

• The Constitution is a living document that must adapt to changing times, while its core principles remain unchanged. Interpreters of the Constitution should approach it dynamically, especially when dealing with flexible provisions, leaning towards the weaker or more vulnerable party in case of conflict.
• The key distinction between these two concepts is that a Constitution should not merely grant powers to government organs but should also aim to limit those powers. Constitutionalism acknowledges the necessity of government but insists on placing restrictions on governmental authority.
• Constitutionalism emphasizes the importance of checks and balances, restraining the powers of the legislature and executive to prevent them from becoming unchecked and arbitrary. To protect individual freedoms and uphold human dignity, the Constitution should inherently include provisions for constitutionalism, imposing inherent limits on the authority granted to government bodies.
• In essence, constitutionalism signifies a government with limited powers or restrictions on government authority, standing in opposition to arbitrary and despotic rule. Unrestricted power can lead to an authoritarian government that threatens people's freedoms. A country truly embraces constitutionalism when its Constitution decentralizes power rather than concentrating it in one place and imposes various checks and limits on that power.

Constitutions spring from a belief in limited government

• Constitutions are born out of a belief in restraining the power of government. In the United States, according to SCHWARTZ, the term "Constitution" refers to a written document that establishes and limits governmental authority. The emphasis on both granting and circumscribing authority is considered fundamental. The concept of Constitutionalism is not a new one; it has deep roots in human thinking. Many natural law philosophers have advocated for this idea in their writings.
• 'Constitutionalism' essentially signifies the idea of limiting government or putting constraints on government power. It stands in direct opposition to arbitrary authority. Constitutionalism acknowledges the necessity of government having powers, but it also insists on placing boundaries on those powers. The opposite of Constitutionalism is despotism, where unchecked power can lead to an authoritarian and oppressive government that threatens the freedoms of the people.
• A country truly embodies constitutionalism when its Constitution not only establishes a government but also decentralizes power instead of concentrating it in one place, while also imposing various checks and limitations on that power. Constitutions are rooted in the belief in limiting the government's authority.
• According to SCHWARTZ, in the United States, a Constitution is a written foundational document that both grants and restricts governmental powers. This emphasis on granting and limiting authority is considered fundamental. The concept of Constitutionalism is not new and has deep historical roots in human thought. Many natural law philosophers have promoted the idea of Constitutionalism through their writings.
• Constitutions endure for various reasons. Some persist due to a strong political consensus, while in certain societies, a delicate balance of power among different political groups makes it challenging for any single group to overthrow the constitutional framework. In some cases, constitutions provide a strategic compromise that doesn't significantly threaten the power of existing elites but still allows for the inclusion of the aspirations of previously marginalized groups.

Constitutionalism, Indian Perspective

• What made Indian constitutionalism unique was its deliberately cosmopolitan nature. Additionally, we can examine some of the significant underlying conflicts that have shaped the essence of constitutionalism in India, particularly Constitutional Morality: At its core, constitutionalism implies a politics of limitations. To understand the commitment to constitutionalism, we can refer to Ambedkar's discussion of the concept of constitutional morality, a set of conditions that individuals in a constitutional framework must adhere to.
• Ambedkar introduced the term "constitutional morality" in a well-known speech he delivered on November 4, 1948. In the context of defending the decision to include the structure of administration in the Constitution, he extensively quoted the classicist George Grote. According to Grote, the existence of constitutional morality was essential for a government that is both free and peaceful. Grote's understanding of "constitutional morality" did not merely refer to the moral values within a constitution, a meaning often associated with the phrase today.
• It also did not imply the conventional nineteenth-century usage, where constitutional morality pertains to the customs and protocols governing decision-making in cases where the constitution allows discretionary power or remains silent. The primary objective of constitutional morality was to avoid revolutions and instead rely on constitutional methods for addressing disputes. The forms of political action prominent during the nationalist movement, such as satyagraha, non-cooperation, and civil disobedience, contradicted the principles of constitutional morality. Embracing a procedural approach meant that constitutional morality recognized and respected pluralism in the most profound sense.
• Another aspect of constitutional morality was the skepticism toward exclusive claims to represent the will of the people. Any assertion of hero worship or personalization implied a claim to embody popular sovereignty, rejecting the argumentative sensibility that constitutional morality required. For the Constituent Assembly, any assertion of speaking on behalf of popular sovereignty, of representing it, was seen as an attempt to seize it.
• Such claims were not acceptable because the primary aim of constitutional morality was to prevent any branch of government from asserting that it uniquely represented the people. In any constitutional tradition, there exists a tension between the backward-looking and forward-looking aspects of constitutional law. The backward-looking elements relate to constitutional texts, founders, and original intentions, while the forward-looking elements involve an ongoing discourse on the nature of the social contract and social justice.

Constitutional Tensions

• From its inception, many of the significant conflicts that have characterized Indian politics and the formation of the Indian State have been incorporated into the legal framework. Some of these conflicts are familiar in constitutional law, such as the tension arising from the separation of powers. The formal process of amending the Constitution, which granted Parliament the authority to make amendments in most cases, along with the acknowledgment of judicial review, meant that the Constitution leaned in the direction of both written constitutionalism and parliamentary sovereignty.
• For instance, recognizing the right to property while also acknowledging the state's responsibility for land redistribution created a legal tension between means and ends. The debate between centralization and decentralization was another source of friction. Various constitutional mechanisms, from regional emergency powers to the concurrent list, manifested the tensions between functionalism and participation.
• The Constitution was designed to protect individual liberties, promising freedom for individuals, while also acknowledging the significance of community identities, both for addressing historical injustices and protecting minorities. This inherent duality set up tension in the constitutional project, spanning issues such as affirmative action, reservations, and minority education institutions.

The Nature of Indian Constitutionalism can be examined through various lenses:

• State Failure: The extensive scope of constitutionalism warrants consideration and offers insights into Indian constitutional law. Notably, the Indian Constitution is one of the world's longest constitutions. A distinctive aspect of its creation was the inclination toward codification. The Constitution not only addressed citizens' rights, limits on government power, democracy, and social justice but also played a role in building and safeguarding state institutions from the unpredictabilities of ordinary politics. Using constitutional law to compensate for significant state failures comes with its own set of challenges, as some argue that an already overburdened Supreme Court takes on additional burdens by expanding constitutional law in this manner.
• Design and Structure: The coherence and stability of a body of constitutional law depend on the nature of the institution from which it originates. In countries like India with a written constitution and provisions for judicial review, the judiciary plays a pivotal role. This can lead to clear expressions of political divisions or philosophies and consistent articulation of these perspectives over time.
• Law and Democracy: One way to understand the evolution of Indian constitutional law is as a transition from strict legal interpretations to a more structural reading of legal materials. Another perspective views it as a product of political compromise and negotiation. In such a context, constitutional doctrine is influenced by the concept of compromise, which can manifest in two forms: compromises between norms and social forces, and compromises between competing and sometimes incompatible values.

Is the Indian Constitution Federal or Unitary? 

• A country's constitution can be categorized as either federal or unitary in nature. In a federal constitution, there is a central government with specific powers that it exercises throughout the entire country, alongside regional governments, each having jurisdiction within a particular region. Various relationships emerge between the central government and the regional governments. India serves as an example of a federal constitution, and other federal constitutions include those of the United States, Canada, Australia, Malaysia, and Germany.
• A federal constitution is typically a more complex and legally detailed document compared to a unitary constitution, where all governmental powers are concentrated in a central government that can delegate such powers to its agencies as it sees fit. A federal constitution must address numerous details, such as the distribution of powers between the central government and regional governments, which a unitary constitution does not concern itself with. Examples of unitary constitutions can be found in Britain, Sri Lanka, and Singapore. The issue of federalism became prominent in India following the Emergency and its aftermath.
• During the Emergency, Congress Ministries relinquished their responsibilities to the Center. Responsible State Ministries could not have advised ratification of the 39th Amendment on such short notice. The presence of Congress governments at both the Center and in numerous states for over 25 years prevented federal government issues from arising.
• However, when the Janata Party assumed power at both the Center and in many states after the parliamentary and state elections of 1977, the few states where Congress Ministries continued to function suddenly recognized that India's Constitution was indeed federal. Recent decisions by the Supreme Court have brought into question whether India's Constitution is truly federal.
• Since the decision in W.B. v. Union of India, it has been the Supreme Court's doctrine that India's Constitution contains so many unitary features that federal features are almost nonexistent. In Rajasthan v. Union, Chief Justice Beg stated that India is "in a sense" federal, but federalism is significantly constrained by the requirements of national integration, political and economic coordination, and social, intellectual, and spiritual upliftment.
• It is argued that this view is based on an imperfect understanding of India's Constitution and other federal constitutions. This chapter aims to demonstrate that many features upon which the Supreme Court relies to support its doctrine can be found in constitutions that are unquestionably federal. In W.B. v. Union of India, the Supreme Court's majority judgment ruled that the Union had the right to the coal mines vested in the state of West Bengal.
• The discussion on Federalism and Sovereignty in the majority judgment is unsatisfactory. Instead of discussing federalism in detail, it would be more effective to consider the so-called unitary features independently and demonstrate their presence in undoubtedly federal constitutions. This also applies to the views expressed by Chief Justice Beg in Rajasthan v. Union.
• A theoretical debate on Federalism is unnecessary. Prof. Wheare's test, as laid out in his classic work, has generally been applied to India's Constitution and can be accepted, with the caveat that it should be supplemented with Prof. Sawer's insightful discussion. Prof. Sawer correctly emphasized the need to examine whether a federal situation existed in a country before it adopted a federal constitution. In the case of India, a federal situation was evident due to its size, population, regional (including linguistic) differences, and communication challenges.
• To summarize, the argument that India's Constitution is not federal because the states were not independent before becoming part of the Federation is not valid. A federal situation existed when the British Parliament adopted a federal solution in the Government of India Act, 1935, and when the Constituent Assembly adopted a federal solution in India's Constitution.
• The power of Parliament to alter state boundaries without their consent may appear to violate the federal principle, but it is important to note that it is not Parliament that has unilaterally altered state boundaries. Instead, through extrajudicial agitation, the states have compelled Parliament to make these changes. In practice, the federal principle has not been violated.
• The allocation of residual legislative power to Parliament is irrelevant to determining the federal nature of a constitution. Even though the U.S. and Australian Constitutions do not grant residual power to the federal government but rather to the states, they are unquestionably federal. External sovereignty is also not relevant to the federal nature of a constitution, as external sovereignty belongs to the entire country. However, the division of internal sovereignty through the distribution of legislative powers is a crucial element of federalism, and India's Constitution possesses this feature.
• The presence of exclusive legislative powers assigned to the states underscores the federal nature of India's Constitution. While there are limited exceptions, List II, Schedule VII of India's Constitution grants exclusive legislative powers to the states, emphasizing federalism. The enactment of Article 352, which deals with emergency powers arising from war or external aggression threatening India's security, merely recognizes de jure what occurs de facto in major federal countries like the U.S., Canada, and Australia during times of war or imminent threat of war when these countries act as if they were unitary. The exclusive legislative powers conferred on the states in India's Constitution highlight its federal nature.
• Article 355, which imposes a duty on the Union to protect a state against external aggression and internal disorder, is not inconsistent with the federal principle. The defense of a state against external aggression is essential in any federal government, and the War Power belongs to the Union in all federal governments. Concerning internal disturbance, the absence of a state's application does not significantly affect the federal principle, as demonstrated in the United States and Australia.
• Since both federal and state laws operate on the same individuals in a federal system, in cases of conflict between a valid federal law and a valid state law, the federal law takes precedence. Article 254 of India's Constitution provides for this, with exceptions that do not affect the federal nature of the Constitution.
• Federal laws must be implemented in the states, and the federal executive must have the power to take appropriate executive action under federal laws in the states, including law enforcement. Whether this is achieved by establishing a parallel federal law enforcement mechanism in each state or by utilizing existing state machinery is a matter of practical expediency that does not affect the federal principle.
• In India, the power to give directions to state governments does not violate the federal principle. This power is akin to the federal government's authority in the U.S. to enforce its laws, including by using force if necessary. Therefore, the power to issue directions to state governments does not undermine the federal principle.
• Article 356, which provides for the imposition of President's Rule in cases of the failure of constitutional machinery, is based on Article 4, Section 4 of the U.S. Constitution and does not contradict the federal principle. These provisions were meant to be a last resort but have been subject to abuse, affecting the functioning of India as a federal government. However, recent amendments to Article 356 and the assertion that the doctrine of the Political Question does not apply in India allow the courts to play a more active role in preventing misuse of the power to impose President's Rule.
• The power to proclaim an emergency on the grounds of armed rebellion does not compromise federalism because it exists in undisputedly federal constitutions as well. The provisions of Article 355, which impose a duty on the Union to protect a state against external aggression and internal disorder, are not inconsistent with the federal principle. The War Power belongs to the Union in all federal governments, making defense against external aggression essential.
• Regarding internal disturbance, the absence of a state's application does not significantly affect the federal principle, as demonstrated in the United States and Australia. As both federal and state laws operate on the same individuals in a federal system, in cases of conflict between a valid federal law and a valid state law, the federal law takes precedence, as provided by Article 254 of India's Constitution.

Conclusion

In conclusion, India's Constitution is fundamentally federal, and the arguments that it is not are not supported by an examination of its provisions compared to those of clearly federal constitutions. The federal principle is dominant in India's Constitution, and its federal nature is evident when comparing its provisions to those of other federal systems.