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BIRTH OF THE INDIAN CONSTITUTION AND DEATH OF CONSTITUTIONALISM

Introduction

The Constitution of a country contains the basic principles on which the legal system of the country stands. The need of a constitution in a country arises because of the inherent human desire to be free along with being governed well. Most societies seek to place their core values in the heart of their polity and believe that the presence of political authority is essential for the realization of those values. Here, it becomes important to put certain limitations on the powers of the authority to ensure that it does not destroy the very values that it is intended to protect. This gave birth to the idea of Constitutionalism.

What is Constitutionalism?

The principle of Constitutionalism is indispensable to the effective governance of a country. It can be defined as the process of disempowering the state and is based on the principle of ‘Maximum governance and Minimum government’. It seeks to place certain limitations on the powers of the government to keep the government from being authoritarian and arbitrary.Constitutionalism is the anti-thesis of absolutism, authoritarianism, despotism and arbitrariness.

However, the mere presence of a constitution does not ensure that constitutionalism will follow. The constitution of a country may provide for Dictatorship as the form of government in the country but the autocratic and arbitrary rule of the dictator will be contrary to Constitutionalism. Thus, a constitution without constitutionalism is a meaningless document.

Constitutionalism in the Indian Constitution

The Constitution of India that came of age in the era of modern written constitutions places constitutionalism as a pre-condition. It establishes a limited government based on rule of law. The Constitution of India contains several provisions which reflect the characteristics of constitutionalism such as Federalism, Democratic and Republican government, Decentralization of Power, Secularism, Socialism, Rule of Law, Fundamental Rights, Protection of Minorities, Independence of Judiciary, power of Judicial Review and many more.

However, despite the inclusion of all such theoretical principles of constitutionalism in the Constitution, there have been several instances since the enactment of the Constitution when India has witnessed the Death of Constitutionalism.

Death of Constitutionalism in India

It has been rightly said that ‘if the nineteenth century witnessed the Death of God then the twentieth century has witnessed the Death of Constitutionalism’.Since the birth of the Constitution of India, India has been a witness of several instances of Death of Constitutionalism.Despite the Constitutional guarantee of principles of constitutionalism, there have been instances of arbitrary use of power by the governments on various occasions which led to the Death of Constitutionalism in India.

The Death of Constitutionalism in India began from the very first year of the enactment of its constitution with the case of A.K Gopalan v. State of Madras[1]. In this case, A.K Gopalan, a communist leader was detained under the Preventive Detention Act, 1950 which was subsequently challenged by him in the Supreme Court. In the very first year of the enforcement of the Constitution of India, the Supreme Court of India upheld the validity of a law that allowed the government to detain any individual without trial if they are deemed to be a threat to the country’s security on the ground the protection of Article 21 does not lie against legislative actions.

This case was a watershed moment in the Indian History in which the Apex Court of independent India upheld the validity of a law similar to the draconian Rowlatt Act which India under the colonial rule vehemently protested against.

Another such instance was the introduction of the First Constitutional Amendment in 1951 by the same Constituent Assembly who drafted the Constitution of India while it acted as the provisional parliament. It added the ninth schedule to the Constitution and inserted Articles 31A and 31B and placed the laws introduced under it outside the scope judicial review. Apparently, the amendment was made to introduce land reforms which would otherwise have been violative of the Right to Property. Consequently, it provided that the laws placed in the ninth schedule cannot be challenged in the court of law even if they violated the fundamental rights of the citizens. The law was widely misused and various legislations were exempted from judicial scrutiny. Giving such absolute powers to the government is certainly an anti-thesis of the constitutionalism envisioned by the Constitution of India.

By the 38th Constitutional Amendment in 1975, the government made yet another attempt to exercise arbitrary and absolute powers and India witnessed the death of Constitutionalism. In the case of Indira Gandhi v. Raj Narain[2], the Allahabad High Court declared the election of Ms. Indira Gandhi void.  Consequently, the 38th Constitutional Amendment was made by which the elections of the President of India, Vice President, Speaker of Lok Sabha and the Prime Minister were placed beyond judicial scrutiny thereby depriving the judiciary of its power of judicial review which is an essential feature of constitutionalism, on the 25th anniversary of the Constitution of India.

Today, after 74 years of the enactment of the Constitution of India, India continues to witness such acts of the government which reflect unconstitutional and arbitrary use of its powers.

Indian Judiciary: Guardian of Constitutionalism

It would be unjust to discuss the instances where India could not practice the principles of constitutionalism without acknowledging the attempts of the Indian Judiciary to restore and uphold constitutionalism in India. The miscarriage of justice that occurred during the A.K Gopalan case was corrected by the judiciary in the case of Maneka Gandhi v. Union of India[3] in which it overruled the judgement of  A.K Gopalan case and widened the scope of Article 21 to protect it from being arbitrarily misused by legislative action. Similarly, in IR Cohelov. State of Tamil Nadu[4]the Supreme Court removed the unconstitutional shield taken by the Parliament to violate Fundamental rights by placing laws under the ninth schedule. As it was violative of its power of judicial review which was held to be a basic structure of the constitution.

While talking of the role played by the judiciary in upholding the principles of constitutionalism in India, the landmark judgement of KeshavanandaBharti v. State of Kerala[5] must be considered which not only protects the Basic Structure of the constitution from being amended by the parliament but also establishes the supremacy of the Constitution of India and thereby upholds constitutionalism.

Conclusion

A constitution holds no significance without the presence of constitutionalism in it. Constitutionalism prevents the arbitrary use of power by the governments and prevent them from being authoritarian. The Constitution of India also places constitutionalism as a pre-condition to establish the supremacy of rule of law. However, in practice there have been instances when the governments in power have tried to exercise power arbitrarily but the judiciary of India has always acted as the guardian of the Constitution and has restored constitutionalism in India.

Author(s) Name: Princi Bhardwaj (Aligarh Muslim University)

References:

[1]A.K Gopalan v. State of Maharashtra AIR [1950] SC 27

[2]Indira Gandhi v. Raj Narain[1975] AIR 865

[3]Maneka Gandhi v. Union of India [1978] SC 597

[4] IR Cohelo v. State of Tamil Nadu AIR [2007] SC 861

[5]Keshavananda Bharti v. State of Kerala [1973] 2SCC 133