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Constitution Day (November 26) is an occasion to look at the performance of the State in terms of constitutional governance on the one hand, and to make an assessment of the extent to which constitutionalism has taken root on the other.

By Madhav Menon

EXPECTATIONS AND ACHIEVEMENTS

The expectations are vividly explained in the preamble to the Constitution and the terms of their implementation in the Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are outlined in the Constitution itself. The very fact that the Constitution is alive and kicking in India, while many countries which gained independence along with India have had their constitutions annulled or overthrown by authoritarian regimes, is testimony to the dynamism of Indian politics and the commitment of the people of India to democracy, rule of law and human rights.

Despite several challenges from cross-border terrorism and border skirmishes with neighbouring countries, the country could maintain its unity and integrity, asserting the sovereignty of the republic. There are, of course, unresolved border disputes which are largely legacies of the colonial past. The good news is that India today is far stronger, both economically and militarily, than in the past and can negotiate from a position of strength for settlement of all disputes with other countries, big and small.

On the “socialist and secular” character of the State, there are different views possible on performance, depending on the meaning and content one ascribes to these words. The Supreme Court in DS Nakara v Union of India said that the “principal aim of a socialist State was to eliminate inequality in income, status and standard of life”. While Parliament and state legislatures have been legislating to equalise opportunities and status, in respect of inequalities in income, the situation is considered unsatisfactory, particularly in the rural and tribal sectors. It is true there is no more starvation and famine anywhere in the country and people below the poverty line have been steadily decreasing over the years. The affirmative action programmes of central and state governments have enabled the Scheduled Castes, Scheduled Tribes and backward classes of people, particularly women and children, to lift themselves to a better quality of life as compared to the initial decades of the republic. The building of an egalitarian social order is work in progress.

SECULARISM: VICTIM OF VOTE BANK POLITICS

Given the diversity of the population and the guarantee of religious freedom to all citizens with special rights for minorities, secularism in the Indian context was conceived differently in concept and application to that prevailing in Europe and America. In SR Bommai v Union of India, the Supreme Court declared that as per the constitutional provision, secularism means equal treatment of all religions by the State without the State subscribing to any religion. That India preferred to remain secular despite the fact that the country was partitioned on the basis of its Hindu-Muslim population is testimony to the secular commitment and desire to accommodate all religious groups in the multi-religious republic of India. No doubt, there are continuing tensions and occasional religious conflicts which adversely affect the development journey and the spirit of common brotherhood and fraternity, essential for nationhood.

The inability of the State to implement the mandate of Article 44 in respect of a Uniform Civil Code for all citizens and the manipulation of religious groups for vote bank advantages by political parties have, however, created a false image in the public mind about the practice of secularism by successive governments. All religions continue to prosper in this land and issues being settled through rule of law augur well for the secular future of India.

On democracy and republicanism, India has an enviable record comparable to the so-called developed countries. Democracy has taken deep root with smooth transfer of power every five years (sometimes more often) after free and fair polls involving over 650 million voters! Power is devolved to panchayats and local bodies where people participate directly in local governance. Representative bodies duly elected by the people are managing the provincial and Union governments. In short, the democratic experiment in India has picked up dynamism and inclusiveness on the constitutional path in a short period and proved to the world that unity in diversity is possible under a democratic regime.

COMPLEMENTARITY OF CONSTITUTIONAL INSTITUTIONS

It is unnecessary for the purpose of this essay to decipher the role of each of the three wings of the State in the achievements made during the last seven decades. Constitutional institutions are expected to play complementary roles in achieving the constitutional goal though, on occasion, their functions and powers are so organised as to act as checks and balances to advance the constitutional scheme of good governance.

The Constitution has assigned a unique role to the Judiciary with the Supreme Court as the final interpreter of it and its laws. The Court is also supposed to be the guardian and protector of the Fundamental Rights of the people. The performance of the Judiciary in safeguarding and strengthening constitutional governance and protecting the guaranteed rights of the people is therefore important for making an assessment of the status of the Constitution when it turns 70 in November 2018.

SC PERFORMANCE IN NATION-BUILDING

The Supreme Court has safeguarded and strengthened the Constitution and made a qualitative difference in governance under rule of law. Firstly, by the introduction of the innovative doctrine of “basic structure”, the Court in the Kesavananda Bharati case declared that the Constitution has certain basic features that cannot be altered or destroyed through the amending power of Parlia­ment. By not specifying the basic features, the Court consolidated its supremacy on matters of constitutional interpretation and restrained possible excesses by a future majoritarian government. Secondly, by introducing the “due process of law” clause (expressly excluded in Article 21) through the Maneka Gandhi case, the Court assumed the power to redefine the contours of the Fundamental Rights and strengthened the scope for preventing arbitrariness in all governmental decision-making.

More importantly, by a stroke of judicial activism, the Court found the traditional rule of “locus standi” coming in the way of equal access to justice for those who, because of their poverty or socially or economically disadvantageous position, are unable to approach it for relief. Pioneering the concept of public interest litigation (PIL), the Court permitted public-spirited persons to file petitions for the enforcement of rights of any other person. Using the PIL jurisdiction, the Court, in a series of decisions, widened the ambit of constitutional provisions to enforce the human rights of citizens, enlarge the range of rights protected by the Constitution and democratise legal remedies to provide appropriate relief in cases of violations. The Supreme Court, thus, became the people’s court in the real sense of the term.

Of course, in the process of becoming an activist, the Supreme Court had to face criticism for allegedly encroaching on the domain of the Executive and Legislature and seeking to be populist while lacking democratic accountability.

While presenting the report card on seven decades of constitutional government, the picture emerging is of growing constitutionalism amidst uncertainties of institutional roles and responsibilities in facing the challenges of contemporary politics in a globalising economy.

—The writer is a reputed legal educator

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