[This is a post by Minnah Abraham, Contributing Editor]
Often, the questions, with regard to the formation of the State, persists in the mind of the man right from the beginning, since the emergence of civilization:
“What is the best form of Government”
The answer to the above question brought the emergence of the idea to the origin of constitutionalism and constitutional law, which paved the road to structure and organizing the State, in the form of rules and regulations, requiring the need of law and governance. It was best described by Robert M MacIver, “When we speak of the estate, we mean the organization of which government is the administrative organ. Even an organization must have a focus of the administration, an agency by which its policies are given specific character and translated into action. But the organization is greater than the organ. In this sense, the state is greater and more inclusive than its government. A state has a constitution, a code of laws, a way of setting up its government, a body of citizens…when we think of this whole structure, we think of the state… Under these endlessly varied circumstances the habits pertaining to government, which at first were centred in the family and kin-circle, found a locus in the inclusive community”
Contrastingly the two terms, constitutional law and constitutionalism differ where the former enshrines the coded form of rules and regulation, determining the principle functions, accepted as binding by all concerned in the Government, while latter explicitly accord specific limitations on general administrational powers to keep a check on the exercise of arbitrary decision-making or powers in the hands of the few. ‘Limited Governance’ is what is presupposed of Constitutionalism, incorporating the element of checks and balance within the constitutional law. From this, arose the fundamental rights and guaranteed remedies, Judiciary acting as the impartial arbiter with independent powers apart from legislative check on the executive. Within these fundamental systems, emerged the concept of judicial review, separation of powers, rule of law, the fundamental right to equality and quality of life, universal franchise transparent executive, ensuring the responsibility to keep an eye on anarchy and the wide possibility of misuse and exploitation of freedom guaranteed by means of reasonable restrictions inserted.
Constitutionalism has become as important an issue which deals with intricacies of good governance, constituting a supreme document that governs the legitimacy of the government’s state actions, implying something beyond the idea of legality requiring official conduct to be in conformity with pre-fixed legal rules. Constitutionalism as the concept that drives through the constitutional law ensures, to effectively check whether the act of a government is in accordance with the laws of the State. This further seeks to effectively regulate the State actions and ensure to adopt the changes in the societal evolution, promising to protect the citizens from the very restrictions and rigidity of the law and order.
As Justice H.R Khanna stated,
“The framing of a Constitution calls for the highest statecraft. Those entrusted with it have to realize the practical needs of the government and have, at the same time, to keep in view the ideals, which have inspired the nation. They have to be men of vision, yet they cannot forget the grassroots.”
Notwithstanding the constant changes in the global trend, the modern application of constitutionalism is increasingly under strain, where more recent turns of events seem to provoke profound changes, forcing a transition towards modern constitutionalism. In what was considered to be most celebrated of the judgements, Navtej Singh Johar vs. Union of India, was the one where the real purpose of the constitution was defined in modern terms, to guide the Nation to a transformation from medieval and hierarchical strata to an egalitarian democracy to enclasp the ideals embedded in the Preamble of the Constitution. It was the modern constitutional interpretation, which chose to protect its very own people from the humiliation and discrimination, rather than follow the static interpretation of the rights of liberty and equality, which were applicable in the yesteryears.
The laws are constantly changing, recall the 73rd and 74th amendments of the Indian Constitution in 1992, which create a fortified third tier of the governance i.e. Panchayats and Municipalities, thereby creating a stronger federal decentralisation within the country. Besides these, the dynamic politics and pressure groups, which reflect the diversity of interests so much so that brought to the point where the power centre has to take heed to the opinion emerging from a relatively small community, which had the power to pull down the government. Triple talaq, the case of Sabarimala, Aadhaar project, LGBTIQ+ Rights, judicial activism forcing to fathom deeper into constitutional interpretation to deliver right justice in order to address the broader societal implications and much more witnessed since the last decade. Shifting the focus to a generation of millennials in this decade, causing issues of collective identity, cultural plurality and multi-cultural society in constitutional democracies and the inherent struggle for recognition and demand for sub-national government. The major hindrance is that the strong accord of modern constitutionalism with an idea of ‘national identity’ has become challenging, to sustain/uphold in an increasingly diverse democratic society. It goes to say, “human experience must be decontextualized, and diverse identities extirpated in order to create a single national identity for each State.” In the unstable cultural-sociological, the rushing of the liberal idea of State neutrality forces the explicit recognition of common cultural identity, which seems impossible for the modern laws to be integrative. Thus, a need ensued for the rethinking of modern constitutionalism and uniform laws, in the current scenario, in which demands for recognition of cultural plurality and sub-state demands, are ever more prominent.
Antonio Negri believed, the ‘ethic’ of constitutional insurgencies is also ‘ethics of transformation’, signifying the power, strength, and movement of the multitude toward contradictions of constitutionalism’s, characterizing life under constitutional code. Constitutionalism needs to stress on,
“the freedom of the members of an open society to change the constitutional rules of mutual recognition and association from time to time as their identities change.”
Justice evolves around the language of communication through constitutional morality, the ‘morality’ as seen as the justification in the eyes of Lord Macaulay for the enactment of Section 377, which changed when read down by the judges, by turning the, then morality upside down, stating that constitutional morality calls for the values that the right to form intimate relationships to be protected as equal and freedom from persecution and humiliation by the law.
The founding fathers of India, BR Ambedkar and Jawaharlal Nehru, explicitly focused on the notion towards aiming for inclusivity in the post-independent India, the profound concept that discrimination against any minority community/population is antithetical to the ethics of constitution and disrespectful to the very people, who have already suffered/oppressed enough.
Although the concept of modern constitutionalism is a long way from the transformation, citing the ambiguous interpretations of the Constitutional law in the daily lives of a common man, eradication the age-old casteism, discriminatory treatment of a large number of diverse sections of Indian society, be it indigenous, women, disabled or on religious sect and building the culture of unity and inclusivity still remains a continuing challenge in India. However, with the recent event of developments on widening the scope of freedom of speech and expression, 2019 being the year of piercing the age-old concepts, for gender recognition and equality, recognition of women promise a change toward India refocusing towards political advocacy and possible reformed legislative amendments.