Thursday, 19 January 2017

Proposed speech at Hindu College, Delhi on 19th January---Part 3

 A question arises what is a Constitution, why have a Constitution, and what is its purpose ?
A Constitution is the fundamental law of the land. It is a social countract by which a country is governed.

 Every society must have a system of governance. Since man is a gregarious creature, and cannot survive alone,  every community of men and women had to have an organization with a system of governance, e.g. leaders, advisers, etc. Even ancient tribal societies had a system of governance, i.e. a Constitution, with tribal chiefs, etc, though these were unwritten Constitutions, created by custom. Ancient and medieval communities all had unwritten Constitutions, and even today England has a largely unwritten Constitution..

 The first and main purpose of a Constitution is to set up the organs of power. Today these organs are the legislature, the executive, the judiciary, the army, police, bureaucracy, etc.That is why a Constitution is sometimes called the organic law of the land. The Constitution defines the powers and duties of these organs,e.g. the power of taxation in Parliament

 We may consider the historical growth of the English Constitution in modern times, since many of our Constitutional principles have been derived from England.

The Tudor monarchs, from Henry the Seventh, who became King of England in 1485, till the death of Elizabeth 1 who died in 1603. were absolute rulers. The struggle between King and Parliament was in reign of the subsequent Stuart Kings, the first Stuart King being James 1 who became King in 1603. It is not necessary to mention here about these struggles between King and Parliament, and suffice it to say that eventually in this struggle the Glorious Revolution of 1688 established that it was Parliament which was supreme, not the King. In the Bill of Rights of 1689, which was assented to by the new King William, it was laid down that the King could not violate the law and raise taxes or troops without the consent of Parliament. The precedent of 1688 established that Parliament could even transfer the Crown from one head to another, something inconceivable earlier.

 But the Bill of Rights of 1689 only transferred sovereignty from King to Parliament. It did not give any rights to the people. It was John Locke's ' Second Treatise of Civil Government ' of 1689 which for the first time in history said that there were certain ' natural rights ' of citizens, which citizens had by the very fact of being born citizens, and which even the King could not violate.

 This theory of John Locke was in contrast to the earlier theory of Thomas Hobbes ( in his book 'Leviathan' ) which said that the King's sovereignty was absolute. Locke, on the other hand, said that the King's sovereignty was not absolute but  limited. Limited by what ? Limited by the natural rights of citizens which even the king could not violate.

 It was this theory of natural rights of John Locke which became the basis of the Bill of Rights in the U.S. Constitution of 1791, the Declaration of the Rights of Man passed by the French National Assembly in 1789 during the French Revolution, and our own Part 3 of the Indian Constitution, the Part which lays down certain Fundamental Rights of citizens which even Parliament cannot violate, e.g. right to life, freedom of speech, equality, liberty, freedom of religion, etc.

What was the need for providing such fundamental rights in the Constitution ? The need was because it was realized by the Constitution makers that though Parliament was elected by the people, and was therefore expected to represent the interests of the people, yet there may be occasions when Parliament itself may become despotic, oppressive and anti people. Hence the people had to be safeguarded against such eventualities.

  Thus, while the first purpose of a Constitution was to set up the organs of power, the second purpose was to place checks on these organs by incorporating certain fundamental rights of the people, so that the state organs may not become despotic. This was also done by incorporating Montesquiu's theory of separation of powers.

  But who would enforce these rights and checks and balances? Obviously the legislature and executive could not be entrusted to do so, because these rights were to check the powers of the legislature and executive. Hence it was the judiciary which became the guardian of the people’s rights and liberties, either expressly vide Articles 32 and 226 of the Indian Constitution, or by judicial interpretation vide judgment of the U.S. Supreme Court in Marbury v. Madison

  Many feudal Kings, e.g. the Bourbons in France, and the Romanovs in Russia, fiercely resisted any attempt to set up a written Constitution, as they thought this would diminish their absolute powers. It was only after promulgation of the U.S. Constitution in 1791 that written Constitutions came into vogue, and now almost every country has one.

 A third purpose in certain Constitutions, like ours, was to lay down what a welfare state should do.This was mentioned in part 4, which are the Directive Principles of State Policy, though by Article 37 these have been made unenforcible.

The Indian Constitution in its historical context

We may now discuss the Indian Constitution in its historical context. To do so we have to first understand what is India.

As discussed in great detail in my judgment in Kailas v. The State of Maharashtra, and in my article ' What is India ? ' on my blog, India is broadly a country of immigrants, like North America. About 92% people living in India today are descendants of immigrants. The original inhabitants of India are not the Dravidians (who were also outsiders) but the pre- Dravidian tribals e.g. bhils, santhals, gonds, todas, etc. (i.e. the Scheduled Tribes). These comprise only about 7% to 8% of the Indian population today (for details see the above mentioned judgment online).

This explains the tremendous diversity in India – so many races, castes, religions, languages, cultures etc. China is larger than India, both in population and in land area, but there is broad (though not absolute) homogeneity in China. All Chinese have Mongoloid faces, 95% belong to one ethnic group called the Han, there is one written script mandarin etc. On the other hand India is characterized by its tremendous diversity, which is broadly due to the fact that it is largely a country of immigrants.

Hence to bring the country together it is essential that all the communities, regions, lingual groups etc., be given equal respect and to be treated equally, and this the Constitution does through Articles 14 to 18 (the equality provisions), Article 25 (freedom of religion), etc.

When India became independent in 1947 Partitions riots were taking place, and large parts of the country were engulfed in religious madness. Pakistan had declared itself an Islamic state, and there must have been tremendous pressure on Pandit Nehru and our leaders to declare India a Hindu state. When passions are inflamed, it is difficult to keep a cool head. It is the greatness of Pandit Nehru and our other leaders that they kept a cool head and resisted the pressure of declaring India a Hindu state. They declared India as a secular state, which was the correct decision in a sub continent of such tremendous diversity. This becomes evident when we see what is happening in our neighbouring country. In Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat (2008) the Supreme Court elaborately discussed our secularism.

The Indian Constitution sets up a federal form of a government. Federalism caters to regional aspirations. In a country of such tremendous diversity federalism is absolutely essential. Thus, the Naga people have their own government and so do the Tamil people, the people of Punjab, of Orissa, Assam, Bengal etc. There is also a central government which is for all. The jurisdiction of the Centre and the States is demarcated by Articles 245 to 248 and the Seventh Schedule.

Unity amongst diversity is a basic theme of the Indian Constitution. Article 301 which states that trade and commerce shall be free throughout the territory of India, provides for economic unity of India, and political unity depends upon economic unity. Article 301 in effect implies that India is one economic unit, and the various states are not separate units. Thus a manufacturer having his factory in Tamil Nadu can freely sell his goods in North India, West India or East India.

India must remain united because only a united India can provide the huge market which a modern industry must have, and it is only modern industry which can generate the wealth required to lift our people out of poverty and other social evils like unemployment, lack of healthcare, etc and give them a decent life. The Indian Constitution is an important mechanism for maintaining the unity of India, a country with tremendous diversity.

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