The style and manner of campaigning in the few Assembly elections that took place last week has taken the campaign trail to extremely personal level. Governance, inclusive development and other similar objectives require our democratic edifice to be strong and resolute. Around half of the population of the country is below 25. The involvement of this huge resource in the affairs of the polity has turned uncivil, acrimonious and personalised. The enforcement and prosecuting agencies of the government are demonstrably being used and implemented in a manner which smacks of political vendetta. This is not complimentary to our image as the world’s largest democracy.
Mob lynching, physically assaulting political rivals and the technique of flashing the little red book for overpowering political opponents are demonstrating themselves in an ugly manner. This is not compatible with a democratic polity. Intolerance is manifesting itself in several ugly ways. At this juncture, one is persuaded to accept that the fundamentals of our Constitution need to be revisited. It is proper to begin at the beginning. Let us look at the preamble of the Constitution which reads, “We, the people of India having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation; In our constituent assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this Constitution.”
The spectrum covered by the Preamble is wide enough to require several instalments of the narratives. In this column one has to remind oneself that the Preamble is one of the basic structures of our Constitution. We should take a bird’s overview of the Preamble as a preliminary analysis of its contents.
In Kesavananda’s case, seven judges out of 13 held that the objectives specified in the Preamble contain the basic structure of our Constitution, which cannot be amended in exercise of the power under Article 368. The Preamble was amended to insert the words ‘socialist’ and ‘secular’ by the Constitution (42nd Amendment) Act, 1976. Secularism is a basic feature of the Constitution and so are Rule of Law; Rule of Equality, “republican and democratic form of government.” Any legislation or executive action violating the basic structure or feature of the Constitution would be unconstitutional or invalid.
The Constitution is an ever-active document and, thus, should be interpreted liberally. It would be interpreted in the light of our whole experience and not merely in that of what was the state of law at the commencement of the Constitution. The Constitution is not an ephemeral legal document embodying a set of legal dicta to be dealt with in casual manners. It sets out principles for an expanding future and is intended to endure for ages to come and consequently, to be adapted to the various crises of human affairs. A purposive rather than a strict literal approach to interpretation should be adopted. A Constitutional provision must be construed not in a narrow sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that a Constitutional provision does not get fossilised but remains flexible enough to meet the newly-emerging challenges. This principle of interpretation is particularly apposite to the interpretation of Fundamental Rights enshrined in the Constitution, and in particular, that part of it which protects and which entrenches Fundamental Rights and freedoms to which all persons in the state are to be entitled is to be given a generous and purposive construction. Such interpretation is adopted which would bring about the ideas set down in the Preamble aided by Parts III and IV of the Constitution. It is the duty of courts to interpret the Constitution to fulfil the needs and aspirations of the people depending on the needs of the time. The content of a right is defined by the courts. Parliament while enacting a law does not provide content to the “right”. The content is provided by the court judgments. Therefore, Constitutional adjudication plays a very important role in this exercise.
Interpretation of a provision of the Constitution, having regard to various aspects serving the purpose and mandate of the Constitution, stands on a separate footing compared to a statute. A Constitution, unlike other statutes, is meant to be a durable instrument to serve through a longer number of years, i.e., ages without frequent revisions. It intended to serve the needs of the day when it was enacted and also to meet the needs of the changing conditions as in future. Interpretation of the Constitution is a question of new meaning in new circumstances. The Constitution is a permanent document and has to be accepted by the people to govern them for all times to come. The words and expressions used in the Constitution, in that sense, have no fixed meaning and must receive interpretation based on the experience of the people in the course of its working. The same thing cannot be said in relation to the interpreting the words and expressions in a statute.
Constitutional adjudication is like no other decision-making. There is a moral dimension to every major constitutional case; the language of the text is not necessarily a controlling factor. The Constitution works because of its generalities and because of the good sense of the judges when interpreting it. It is that freedom of action of the judges that helps preserve and protect our basic document of governance.
The principle of Constitutionalism requires control over the exercise of governmental power to ensure that it does not destroy the democratic principles, upon which it is based. These democratic principles include the protection of Fundamental Rights. The principle of Constitutionalism advocates a check-and-balance model of separation of powers; it requires a diffusion of powers, necessitating different independent centres of decision-making. Constitutionalism or Constitutional system of government abhors absolutism. It is premised on the rule of law in which subjective satisfaction is substituted by objectivity provided for by provisions of the Constitution itself.
In real terms and in actual practice, our society and the governance are far from Constitutionalism. Divisive factors still dominate the scene. The real meaning of justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and opportunity; fraternity ensuring the dignity of the individual and the unity and integrity of the nation must become the dharma of the new generation. But, as things stand, the growth of governance is hardly in keeping in view with the principles of Constitutionalism. It looks as though the Preamble to the Constitution of India is hardly read or understood in our pursuit of perquisite power and prosperity. A turnaround is necessary, may be a jolt of some positive nature could instil some basic things that are enunciated in the preamble. In this exercise, the focus has to be on the younger generation.
When a government decides to spend public money ostensibly for the welfare of the youth, it is necessary that the essentials of Constitutionalism are transmitted and shared with this enormous mass of manpower. The events that have taken place with reference to the local welfare schemes have not been in conformity with the essence of Constitutionalism. This disturbing trend concerns all of us; and there should be a public demand for proper accountability so as to ensure that public funds are spent for objective welfare of norms in keeping with the basic structure of our Constitution.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha.
