The chapter comes up with the philosophical approach of the Indian constitution, it explains the democratic transformation and the concept of social justice. We also highlight the criticisms that the constitution of India faced also about diversity and minority rights.
The Philosophy of the Constitution
A constitution is not only a document that contains laws but also moral values. It cannot be looked at only through a legalistic lens and needs to be supplemented through the philosophical outlook.
How can we understand the philosophy of the Indian constitution?
The constitution as a document is based on a set of moral principles. To make sense of the constitution's substance, we need to use a political philosophy perspective.
When it comes to the philosophy of the constitution, one must keep three things in mind.
1. Conceptual Structure
We need to understand the conceptual structure of the constitution. Proper knowledge must be there of the terms used in the constitution such as,’ Citizenship, Minority or Democracy.
2. Coherent Vision of Society and Polity
An attempt must be made to work out a coherent vision of society and polity conditional upon an interpretation of the key concepts of the constitution. We must have a better grasp of the set of ideas embedded in the constitution.
3. Read in Conjunction with Constituent Assembly Debates
The Indian Constitution must be read in conjunction with the Constituent Assembly debates to refine and rise to a higher theoretical plane, the justification of values embedded in the Constitution.
A philosophical treatment of a value is incomplete if a detailed justification for it is not provided. When the framers of the Constitution chose to guide Indian society and polity by a set of values, there must have been a corresponding set of reasons. Many of them, though, may not have been fully explained.
Why is a philosophical approach needed?
A political philosophy approach to the constitution is necessary not only to evaluate the moral content expressed in it and to examine its claims, but it may also be utilised to resolve disagreements over our polity's multiple vital principles.
These political concepts are interpreted in a variety of ways, and they are occasionally purposely misrepresented to achieve short-term political goals. As a result, we must assess whether the constitutional ideal and its manifestation in other spheres are incompatible.
Which constitution is popularly known as the 'peace constitution' and why?
The post-world war II constitution of Japan drafted and adopted in 1947 is popularly known as the 'Peace Constitution'.
The philosophy of the Japanese constitution is based on the ideal of peace. These ideals are reflected in the preamble and Article 9 of the constitution. It can be said that these values dominated the thinking of the constitution-makers post their war experience.
Why is the Indian constitution considered a means of democratic transformation?
One of the most frequently accepted reasons for having constitutions is to limit the state's ability to exercise excess power. The regulations must be constructed in such a way that the despotic tendencies of states are constantly controlled. As a result, constitutions establish the basic norms for preventing states from engaging in such excesses. Constitutions provide democratic means to bring peace transitions.
The Indian constitution is considered a means of democratic transformation as it provides peaceful, democratic means to bring about social transformation. Moreover, it announced and embodied the first real exercise of political self-determination.
The Indian Constitution was designed to break the shackles of traditional social hierarchies and to usher in a new era of freedom, equality and justice. In this manner, the Indian constitution exists not only to limit people in power but to empower those who traditionally have been deprived of it.
Constitutions can give vulnerable people the power to achieve collective good.
Why do we need to study the framing of the Indian constitution by the Constituent Assembly?
Students of politics should understand the goals and concerns of those who established the Constitution, just as legal historians must trace the origins of legal and political doctrines back in time.
Why is the study of constituent assembly relevant in Indian context and not American?
In the context of the United States, the goals and standards have changed considerably between the 18th and 21st centuries, and studying the constitution's framing may not be very fruitful for political science students.
However, in India, the world of the original framers and the one we live in today may not have altered nearly as dramatically. Understanding of the Indian constitution's framing helps one's understanding of current constitutional practice, as well as their importance and purpose.
What is the Political Philosophy of the Indian Constitution?
The Philosophy of the Indian Constitution cannot be described in one word. It resists any single label because it is liberal, democratic, egalitarian, secular, and federal, open to community values, sensitive to the needs of religious and linguistic minorities as well as historically disadvantaged groups, and committed to building a common national identity.
In short, it is committed to freedom, equality, 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.
The following highlight some of the important aspects of the Indian constitution.
1. Individual freedom
An important point to note about the Constitution is its commitment to individual freedom. It was the product of the continuous intellectual and political activity of well over a century.
Freedom of Press
Ram Mohan Roy protested against the curtailment of the freedom of the press by the British colonial state. Indians continued to demand a free press throughout British rule. It is not surprising therefore that freedom of expression is an integral part of the Indian Constitution.
Freedom from Arbitrary Protest
The infamous Rowlatt Act, which the national movement opposed so vehemently, sought to deny this basic freedom.
Individual liberties, such as freedom of conscience are part of the liberal ideology. On this premise, we might conclude that the Indian Constitution is quite liberal.
2. Social Justice
Classical liberalism always privileges the rights of the individuals over demands of social justice and community values.
The liberalism of the Indian Constitution differs from this version in two ways:
First, it was always linked to social justice. The best example of this is the provision for reservations for Scheduled Castes and Scheduled Tribes in the Constitution. The makers of the Constitution believed that the mere granting of the right to equality was not enough to overcome age-old injustices suffered by these groups or to give real meaning to their right to vote. Special constitutional measures were required to advance their interests.
Second, The Constitution also made it possible for the government to reserve public sector jobs for these groups. The constitution-makers also provided several special measures to protect the interests of Scheduled Castes and Scheduled Tribes such as the reservation of seats in legislatures.
3. Respect for Diversity and Minority Rights
The Indian Constitution encourages equal respect between communities. This was not easy in our country because:
First, the communities do not always have a relationship of equality; they tend to have hierarchical relationships with one another (as in the case of caste).
Second, when these communities do see each other as equals, they also tend to become rivals (as in the case of religious communities). It was important to ensure that no one community systematically dominates others. This made it mandatory for our Constitution to recognize community-based rights.
One such right is the right of religious communities to establish and run their own educational institutions. Such institutions may receive money from the government. This provision shows that the Indian Constitution does not see religion merely as a private matter concerning the individual. Secularism:
Secular states are widely seen as treating religion as only a private matter. That is to say, they refuse to give religion public or official recognition. This is the mainstream western conception of secularism and means the mutual exclusion of state and religion in order to protect values such as individual freedom and citizenship rights of individuals.
What does the term 'Mutual Exclusion' mean?
The term ‘mutual exclusion’ means that: both religion and state must stay away from the internal mutual affairs of one another. The state must not intervene in the domain of religion; religion likewise should not dictate state policy or influence the conduct of the state.
In other words, mutual exclusion means that religion and state must be strictly separated. To protect the religious freedom of individuals, therefore, the state must not help religious organisations. But at the same time, the state should not tell religious organisations how to manage their affairs.
This strict separation helps in safeguarding the freedom of individuals. States which lend support to organised religions make them more powerful than they already are.
Secularism in India
The term ‘secular’ was not initially mentioned; the Indian Constitution has always been secular. The makers of the Constitution had to work out an alternative conception of secularism. They departed from the western model in two ways and for two different reasons.
i) Rights of Religious Groups
The framers of the Indian constitution realised that Intercommunity equality was as necessary as equality between individuals. This was because a person’s freedom and sense of self-respect was directly dependent upon the status of her community allowing citizens to walk about with dignity, self-respect and freedom.
The Indian Constitution grants rights to all religious communities such as the right to establish and maintain their educational institutions. Freedom of religion in India means the freedom of religion of both individuals and communities.
ii) State’s Power of Intervention
The separation of religion in India does not mean 'mutual exclusion but principled distance.'
This was necessary because religiously sanctioned customs such as untouchability deprived individuals of the most basic dignity and self-respect and for this reason, the state simply had to interfere in the affairs of religion. This intervention is however not negative. It allows the state to be distant from all religions so that it can intervene or abstain from interference, depending upon which of these two would better promote liberty, equality and social justice.
The state could also help religious communities by giving aid to educational institutions run by them. The state may help or hinder religious communities depending on which model of action promotes values such as freedom and equality.
5. Universal Adult Franchise
In stable Western democracies, the right to vote has only been extended to women and the working class post WWII.
In stable Western democracies, the right to vote has only been extended to women and the working class post WWII. On the other hand, Indian nationalism has always envisioned a political order founded on the will of every single member of society. The concept of universal suffrage was firmly embedded in the heart of nationalism. The following approaches can substantiate this:
The author of the Constitution of India Bill (1895) - the first non-official attempt at creating a constitution for India asserted that every citizen had the right to participate in the affairs of the country and be admitted to public office.
The Motilal Nehru Report (1928) reinforces this view of citizenship, stating that everybody over the age of twenty-one, regardless of gender, is eligible to vote in the House of Representatives or Parliament.
The essential concept of asymmetric federalism is foreshadowed in the Indian Constitution. Despite the Indian Constitution's unitary tendency, there are significant constitutionally embedded disparities in the legal status and prerogatives of various sub-units within the same federation.
Politically, each major linguistic group is recognised, and all are treated equally. As a result, India's democratic and linguistic federalism has been able to reconcile calls to unity and cultural acknowledgment. There is a very strong political arena that allows for the interaction of many identities that are complementary to one another.
The Indian constitution's federalistic aspect can be shown in the following example:
The North-Eastern State of Nagaland was granted special status under Article 371A of the Constitution. This article not only gives pre-existing laws in Nagaland legal force, but it also safeguards native identity through immigration limitations.
7. National Identity
Our Constitution fosters a shared national identity on a regular basis. The Indian Constitution attempted to balance these multiple identities, recognising that a shared national identity was not incompatible with distinct religious or linguistic identities.
Separate electorates were rejected by the architects of the Indian constitution not because they created religious differences per se or because they jeopardised a basic sense of national unity, but because they jeopardised a healthy national life.
Rather than imposing unity, our Constitution aimed to foster true brotherhood, a goal dear to Dr. Ambedkar's heart. The essential goal, as Sardar Patel expressed it, was to create "one community."
What are some procedural achievements of the Indian constitution?
1. Reinvents Liberal Individualism
Our Constitution reinforces and reinvents forms of liberal individualism. This is an important achievement because this is done in the backdrop of a society where community values are often indifferent or hostile to individual autonomy.
2. Upholds Social Justice without Compromising Individual Liberties
Our Constitution upholds the principle of social justice without compromising on individual liberties. The constitutional commitment to caste-based affirmative action programmes shows how much ahead India was compared to other nations.
3. Commitment to Group Rights
Our Constitution upholds its commitment to group rights (the right to the expression of cultural particularity). This indicates that the framers of the Constitution were more than willing to face the challenges of what more than four decades later has come to be known as multiculturalism.
4. Inclusive Approach - Universal Adult Franchise
The Indian Constitution reflects faith in political deliberation. We know that many groups and interests were not adequately represented in the Constituent Assembly. But the debates in the Assembly amply show that the makers of the Constitution wanted to be as inclusive in their approach as possible.
This open-ended approach indicates the willingness of people to modify their existing preferences, in short, to justify outcomes by reference not to self-interest but reasons. It also shows a willingness to recognise the creative value in difference and disagreement.
It reflects a spirit of compromise and accommodation. These words, compromise and accommodation, should not always be seen with disapproval. Not all compromises are bad.
What are some criticisms of the Indian constitution?
1. India's Constitution is Large
The first criticism is based on the assumption that the entire constitution of a country must be found in one compact document.
In the case of India, many details, practices and statements are included in one single document and this has made that document somewhat large in size. Many countries, for instance, do not have provisions for the election commission or the civil service commission in the document known as the constitution.
But in India, many such matters are attended to by the Constitutional document itself.
2. Indian constitution is Unrepresentative
A second criticism of the Constitution is that it is unrepresentative. Here we must distinguish two components of representation, one that might be called voice and the other opinion.
The voice component of representation is important. People must be recognised in their own language or voice, not in the language of the masters. The Indian Constitution is indeed unrepresentative because members of the Constituent Assembly were chosen by a restricted franchise, not by universal suffrage.
However, if we examine the other dimension, we may not find it altogether lacking in representativeness. The claim that almost every shade of opinion was represented in the Constituent Assembly may be a trifle exaggerated but may have something to it.
If we read the debates that took place in the Constituent Assembly, a vast range of issues and opinions that were mentioned are found, members raised matters not only based on their individual social concerns but based on the perceived interests and concerns of various social sections as well.
3. Indian constitution is extremely borrowed and thus alien
A final criticism alleges that the Indian Constitution is entirely an alien document, borrowed article by article from western constitutions and sits uneasily with the cultural ethos of the Indian people.
This criticism is often voiced by many, even in the 'Constituent Assembly 'itself, there were some voices that echoed this concern.
How is the Indian constitution selective adaptation and not borrowing?
Embracing Modern Thinking
Indians have not only embraced but also made modern methods of thinking their own. Westernisation became a form of protest for Indians against the filth in their own culture.
From Rammohun Roy to Dalits, Indians have used British-imposed modern laws to effect significant changes in their society.
The Evolution of a Hybrid Culture
When western modernity collided with native cultural systems, something like a hybrid culture emerged, probably as a result of creative adaptation, with no analogue in either western modernity or indigenous tradition.
As a result, when we drafted our Constitution, we tried to incorporate both western and traditional Indian principles. Rather than borrowing, it was a process of selective adaptation.
What are the limitations of the Constitution?
There are certain limitations fn the Indian Constitution such as :
1. India has a centralised Idea of national unity.
2. It appears to have glossed over some important issues of gender, justice, particularly within the family.
3. It is also not clear why in a poor developing country, certain basic socio-economic rights were relegated to the section on Directive Principles rather than made an integral feature of our fundamental rights.