Understanding the Constitution - UPSC Polity Notes

Constitution as interaction of legal, political system and society:

Constitutions as legal instruments: A constitution ‘marries power with justice’. It makes the operation of power procedurally predictable, upholds the rule of law, and places limits on the arbitrariness of power. It is the supreme law of the land, and it provides the standards that ordinary statutes have to comply with.
Constitutions as social declarations: Constitutions often attempt, to varying degrees, to reflect and shape society—for example, by expressing the common identity and aspirations of the people, or by proclaiming shared values and ideals. These provisions are generally found in preambles and opening declarations, but can also be found in oaths and mottos or on flags and other symbols that are defined by the Constitution. Other substantive provisions of the constitution, particularly those defining socio-economic rights, cultural or linguistic policy, or education, might also belong to this category. eg: article 14 right to equality, article 15 prohibition of discrimination, etc
Constitutions as political instruments: The constitution prescribes a country’s decision-making institutions: constitutions ‘identify the supreme power’, ‘distribute power in a way that leads to effective decision making’ and ‘provide a framework for continuing political struggle’. The political provisions show how state institutions (parliament, executive, courts, head of state, local authorities, independent bodies, etc.) are constituted, what powers they have and how they relate to one another. eg: article 324 Election Commission of India, article 315 Union public service commission.

Constitutions balance and reconcile these legal, political and social functions in different ways. Two broad constitutional archetypes can be identified: the procedural and the prescriptive –

Procedural: Defines the legal and political structures of public institutions and sets out the legal limits of government power in order to protect democratic processes and fundamental human rights.

A procedural constitution may be appropriate in cases where it is difficult to arrive at a common agreement over issues of values or identity, but where it is possible to reach a more limited and pragmatic consensus on using democratic procedures to resolve these differences. Ex: Canadian Constitution.
They make little or no explicit mention of nation-building or of fundamental philosophical or ideological principles. They contain few substantive provisions (provisions settling particular policy issues) except where such provisions reflect pragmatic attempts to settle practical problems of co-operation in a pluralist society (e.g., language rights and ownership of resources in Canada, education in the Netherlands). Ex. article 3 formation and alteration of boundaries of state.

Prescriptive: It provides a collective vision of what might be considered a good society based on the common values and aspirations of a homogeneous community. In addition to describing how the government functions, the constitution assumes (or attempts to impose) a broad consensus on common societal goals that public authorities must strive to achieve. This is reflected in the emphasis placed on the constitution’s social content and in the ideological shape of its legal and political content.

A prescriptive constitution may be appropriate in cases where a society wishes to re-establish itself on a shared ethical basis that is both symbolically proclaimed by, and practically embedded in, its supreme law. South Africa (1996) and Ecuador (2008) provide examples of prescriptive constitutions.

It should be remembered that these archetypes are not firm categorizations. Most constitutions contain, to varying degrees, both features.

According to South African Constitutional Court Justice Albie Sachs, constitutions can be regarded as ‘autobiographies of nations. Even a relatively thin procedural constitution will say something about how a society sees itself and about who is included in and who is excluded from the nation’s self-narrative.

The Indian Constitution is Prescriptive: It is committed to freedom article 19 , equality article 14 , social justice, and some form of national unity. But underneath all this, there is a clear emphasis on peaceful and democratic measures for putting this philosophy into practice.

Individual Freedom:

Philosophy: A simple answer to the meaning of Freedom is the absence of constraints. However, it is only one dimension of Freedom. Freedom is also about expanding the ability of people to express themselves and develop their potential. A free society is one which enables all individuals to develop their potential with the minimum of social constraints. Then it becomes necessary to understand which social constraints are justified and which are not. Ex: Caste system is a kind of social constraint which can’t be justified, and any kind of constraint can be justified on the basis of Harm Principle i.e.: The harm caused must be serious.
Indian Context: Freedom of expression is integral to the Indian Constitution as mentioned in Part III of the Indian Constitution.

Social Justice:

Philosophy: Social justice means the rights of all people in our community are considered in a fair and equitable manner. Social justice specifically targets the marginalized and disadvantaged groups in our society such as Aboriginal and Torres Strait Islanders, children, people from culturally and linguistically diverse backgrounds, people with disabilities, older people, women. There are four interrelated principles of social justice: equity, access, participation and rights.

Indian Context:

The liberalism of the Indian Constitution differs from the idea of classical liberalism in a way that it is always linked to social justice.classical liberalism ensures equality while Indian liberalism ensures equity where special provisions are provided for weaker sections. Ex: Provision for reservation for scheduled caste and scheduled tribe. ( article 16, article 334)
We can extract five basic principles, from the writings and speeches of Ambedkar, through which justice can be dispensed in the society. These are: 1. Establishing a society where individuals become the means of all social purposes 2. Establishment of society based on equality, liberty and fraternity 3. Establishing democracy- political, economic and social. 4. Establishing democracy through constitutional measures and 5. Establishing democracy by breaking monopoly of upper strata on political power

Respect for Diversity and Human Rights:

Philosophy: Minority rights are based on the recognition that minorities are in a vulnerable situation in comparison to other groups in society, namely the majority population, and aim to protect members of a minority group from discrimination, assimilation, prosecution, hostility or violence, as a consequence of their status. It should be highlighted that minority rights do not constitute privileges, but act to ensure equal respect for members of different communities. These rights serve to accommodate vulnerable groups and to bring all members of society to a minimum level of equality in the exercise of their human and fundamental rights.

Article 27 (International Covenant on Civil and Political Rights): In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language
United Nations Declaration on the Rights of Minorities: Under Article 2(1) of this declaration, minorities shall have the right to practice their religion, enjoy their culture and use their own language in both public and private settings without any kind of discrimination. Article 3 of this declaration guarantees persons belonging to minorities the right to exercise their rights individually and in community with others without discrimination.

Indian Context: The rights in the Universal Declaration of Human Rights were almost completely covered in the Indian Constitution either in Fundamental Rights or Directive Principles of State Policy. Nineteen fundamental rights were covered in Motilal Nehru Committee Report, 1928 out of which ten appear in the Fundamental Rights whereas three of them appear as Fundamental Duties. The apex court has interpreted the Fundamental Rights available to a citizen and now rights like right to privacy, right to clear environment, right to free legal aid, right to fair trail etc. also find place in the Fundamental Rights.

Secularism

Philosophy: The mainstream conception of secularism means mutual exclusion of state and religion in order to protect values such as individual freedom and citizenship rights of individuals. It means the state must not intervene in the affairs of religion, likewise religion should not dictate state policy. Jeremy Rodell identifies three core principles of secularism: institutional separation, freedom of belief and no discrimination on grounds of religion.

Secularism seeks to defend the absolute freedom of religious beliefs and protect the right to manifest religious belief insofar as it does not impinge on the rights of freedom of others.
Secularism is about democracy and fairness: No religious or political affiliation gives advantages or disadvantages, and religious believers are citizens with the same rights and obligations as anyone else.
Secularism protects free speech and expression: Religious people have the right to express their beliefs publicly but so to those who question these beliefs.

Indian Context: The three strands of religious freedom, celebratory neutrality and reformatory justice are the core elements of Indian secularism.

Three schools of secularism in India:

Gandhian: Article 25-28
Nehruvian: Article 15
Ambedkarite: Article 29 and 30

Differences in Indian secularism:

Western model of secularism	Indian model of secularism
Mutual exclusion of state and religion, i.e. non-interference in affairs of each other.	Principled distance of state from religion, i.e. state can interfere or engage with religion.
Embodies a negative concept of secularism, i.e. strict separation between religion & state	Embodies a positive concept of secularism, i.e. equal respect to all religions or equal protection of all religions *(Sarvadharma Sam Bhava)*
No state support to any educational institution run by religious minorities.	A state can aid educational institutions run by minorities.
No engagement with religion whatsoever.	State-supported religious reform is possible. For e.g.: Abolition of untouchability, allowing inter-caste marriages, ban on triple talaq etc.
No public policy can solely be based on religion, as religion is completely a private matter.	The government frequently frames policies having a religious basis, like the constitution of waqf boards etc.

Achievement made by India:

Sometimes, Indian secularism is also criticized for being Anti-religious, but that is actually not true, as it is against institutionalised religious domination.
It is also said that it promotes Minoritism, but it only advocates minority rights as long as those rights protect their fundamental interests.
It is also criticized for being Interventionist, which means that secularism is coercive, and it interferes excessively with the religious freedom of communities. But again, this is misread because Indian secularism permits state-supported religious reforms.
It was also criticized as an impossible project by other nations, but India claimed this false. In fact, migration is increasing due to globalization, and it is creating a situation where the Indian model is very much desired. Europe, America, and some parts of the Middle East are beginning to resemble India in the diversity of cultures and religions which are present in their societies.