The Constitutional Idea of India

The Indian Republic is the consequence of the ideals that inspired our national movement and it is in the Constitution that the nation’s founders fortified this vision. Our Constitutional text addresses equally the creation of modern independent political institutions and the safeguarding of individual liberties while at the same time ensuring social reformation to liberate the citizens of India from the ill-effects of feudal traditions and scriptures. The Preamble of the Constitution manifests the philosophical framework for both government and judicial institutions. I would like to view the Constitution as the Charter of our destiny.

The idea of modern India as envisioned by our Constitution is one which is based on the recognition and respect for a multitude of identities. Members of the Constituent Assembly through the struggle for independence and consequently the tragedy of Partition recognised the challenges of Indian diversity. They deemed it fundamental to recognise and imbibe the constitutional idea of India as one that celebrates plurality and provides equal representation to the will of our diverse citizenry. India represents almost every religion in the world. While the majority population are Hindus, they are not a homogeneous community but are further sub-divided based on the basis of language and caste. The Constitution recognises and protects multifarious language scripts, cultural diversity and educational rights, religious freedom and guarantees equal treatment to all. It is this plurality and values of our nation which makes the functioning of our democracy a remarkable success and our Constitution a unique, historic and celebrated instrument of social reformation and nation building. The Constituent Assembly keeping in mind the complexity of Indian diversity ensured that the cornerstone of the Indian nation must be an inclusive democracy.

The Judiciary as Sentinel-Qui-Vive

The framers of our Constitution recognised the vulnerabilities of a majoritarian State and mandated a clear separation of exercise powers between the judiciary and the executive.

The Indian Judiciary has been vested with the onerous responsibility of being the sentinel qui vive of our Constitution and serving as the bulwark of our democracy. It ensures that the democratic values, which is a basic feature of our Constitution, are preserved and protected by empowering the citizens to test State action by having unhindered access to justice through the judicial institutions. The Writ Courts are the final interpreters of the Constitutional text and are responsible for preserving and upholding Constitutional promises.

It is important to appreciate that the ideologies that govern political power continuously evolves and adapts to social challenges to the extant caste, class, gender relations and economic realities. However, the response to such evolutionary inertia is to be premised and tempered by the constitutional values and morality which our forefathers vociferously protected and laboriously manifested in the text of the Constitution.

In this context, one must understand that any Governments claim to represent ‘popular sovereignty’ is an inequitable exercise. Such political claim of appropriating the will of the people is dangerous, as from such political desires stems the ideological premise of a majoritarian establishment. India’s Constituent Assembly guaranteed the citizens of its nation individual liberties, separation of powers, federalism and a rule of law, so that our diverse democracy can overcome any majoritarian challenge to the constitutional rights.

The Indian judiciary has been the champion of protecting and preserving the freedom and liberties guaranteed by the Constitution de hors the ideologies of the political establishment in power. State actions have always been tested by the Courts on the anvil of the foundational principles enshrined in the Constitution independently and without any fear or fervour.

The Judiciary in fulfilment of their constitutional obligations have repeatedly nullified unconstitutional State action and State excesses. Recent examples of this are the High Court of Delhi deciding that allowing the State to define the term anti-national would lead to conferring arbitrary power on the executive, which could, based on its subjective view, term any activity not to the liking of the Government as anti-national. This situation, in a democratic country, governed by rule of law, is best avoided. Similarly, The Supreme Court of India while exercising judicial review found that the imposition of Article 356 of the Constitution in the State of Uttarakhand and Arunachal Pradesh to be blatantly unconstitutional and amounting to an attack on the federal structure of our Constitution. Further, the fundamental right of free speech was protected by Supreme Court by striking down section 66A of the Information Technology Act, 2008. Further, the Supreme Court struck down the National Judicial Appointments Commission Act, 2014 as unconstitutional for ensuring that the independence of judiciary is not sacrificed at the altar of majoritarian political will.

Judiciary as an independent and anti-majoritarian institution would not have been possible had on the 24th April, 1973 the Honourable Supreme Court of India not pronounced the Kesavananda Bharati Case. On this day, the Indian constitution was reinvigorated. The Court developed the “basic structure doctrine”. This doctrine ensured that certain essential parts of the constitutional text such as equality, federalism and secularism remain inalienable from the constitution. With this the judiciary eternalised the ideals of the Constituent Assembly and with that ensuring that the constitutional promise of our forefathers can never be diminished. It continues to be perennial source of guidance and strength to the Judiciary in upholding the Rule of Law and ensuring that our nation achieves its destiny of glory and resplendence as envisioned by our forefathers while adapting to social and contemporary realities.

Gopal Subramanium is a Senior Counsel in the Supreme Court of India and a former Solicitor General of India