Celebrate constitutionalism

Faizan Mustafa

SIXTYSIX years after the adoption of the Constitution on November 26, 1949, by the Constituent Assembly, we have decided to celebrate it as ‘Constitution Day’ rather than ‘law day’. The Constitution is the supreme law, but devoid of constitutionalism, it is not important. We should celebrate constitutionalism, but feel concerned about its silent death. Hitler had Weimar constitution, but no constitutionalism. Many Muslim and socialist countries’ constitutions similarly undermined the idea of constitutionalism. The ‘death of constitutionalism’ may be the central event of our time, just as the ‘death of God’ was that of the 19th century. Why constitutionalism is more significant? Is our Constitution also only ostensibly one of rights and limitations, but in reality of just powers and control?

Man since antiquity has pondered the problem of how to reconcile the need for order and authority in society, with the desire for individual liberty. In framing a government which is to be administered by men over men, the greatest difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself. Humanity has always had a longing to be free in addition to being well governed. As a result, a great deal of thought and political inventiveness has gone into an attempt to create political systems that will allow governments and its organs to exercise all the power that is essential to attain the collective ends of society, without at the same time, either compromising or destroying the liberties of its individual members. Such an attempt to institutionalise such a social condition is being termed as constitutionalism, the concept of limited government. Governmental power must be restricted so that the government does not destroy the values which it is supposed to promote. Ministers and MPs of the ruling party are the visible face of the government and therefore their views on liberty do give an idea of how the government views individual freedom.

The fundamental value that constitutionalism must protect is human dignity. Democracy in itself is not a goal. Individual liberty and limitations on governmental powers are far more important. If Aamir Khan does not have the freedom to express his family’s apprehensions, we are compromising his liberty of free speech. In the National Anthem case, the Supreme Court had observed: “Our traditions teach us tolerance. Our Constitution preaches tolerance. Let us not dilute it.” The strong reaction  against writers and actors prove our intolerance for a contrary view.

Are we tilting toward authoritarianism? Some scholars think that all societies are by nature authoritarian and governments even more so. The widely held belief that sovereignty resides in “the people” who delegate it to the politicians to hold in trust for them is, for Prof Griffith, a “bit of nonsense” — a “cover-up for authoritarianism”. We had spells of authoritarianism under Indira Gandhi. Today, the PMO has once again become too powerful. The country wanted a decisive leader and we have one. But massive mandates at times may lead to authoritarianism. Constitutionalism is basically the antithesis of authoritarianism. The main purpose of drafting a constitution is to limit or restrict the power of government and its three organs. Fundamental rights under our Constitution thus do the sacred function of denying or limiting the power of the ‘state’ from where the greatest threat to such rights comes. The other institutional methods of limiting the power are to be found in the doctrines of distribution of powers, separation of powers, judicial review. The framers of our Constitution established both the nation’s ideals and the institutions and processes for achieving them. The ideals were national unity and integrity and a democratic and an equitable society. But today when the nation is celebrating its first Constitution Day, “we, the people of India”, the  real “sovereign masters” of this great country, are at a loss to see the slow and certain demise of these ideals, particularly constitutionalism. If our democracy has failed to meet our aspirations and is seen to be beset with grave maladies, it is not so much the fault of the Constitution as the people operating the system. We  have one of the best constitutions. Most Asian and African constitutions which were drafted in last four decades have borrowed heavily from our model.

Our Constitution deals with four Ds — it defines power (Preamble), distributes power (between Centre, states and three organs), denies power (fundamental rights) and directs power (Directive Principles). The purpose is to ensure that no organ or entity should have power without restrictions. Even the Supreme Court is not supreme. No one should cross the Lakshmanrekha.

American chief justice Marshal rightly said a constitution is framed for ages to come, but its course cannot always be tranquil. Today, it is shocking to see how we are governed. Unprecedented intolerance, corruption, reckless criminalisation and debasement of all values of the freedom movement have become the hallmark of our polity. Criticism of the government or party in power or expression of one’s opinion on growing intolerance is understood as sedition or treason. No effort has been made to make the outdated sedition law of 1860 compatible with the citizen’s freedom of speech and expression.

Ordinance making power is routinely invoked, constitutional amendments are passed to protect individuals or enhance powers of the government, judicial activism has become a norm, and democratically elected state governments have been dismissed under Article 356. We continue to have draconian laws under which people can be arrested and denied bail. The new Gujarat law is a blot on civil liberties. Beef laws impinge on an individual’s freedom. If people write or speak against Parliament or state legislatures, they will be hauled up for the breach of legislative privileges. There is an urgent need to interpret the freedom of the media. Similarly, if we criticise a decision of the court, we will be punished for contempt. Though social activist Medha Patkar was punished under this law, Bal Thackeray who said “I piss on the judgments of the court” was spared.

Dr Ambedkar rightly observed that ultimately it was the character, the integrity and the wisdom of those who worked the Constitution that would determine its fate: “However good a Constitution may be, it is sure to turn out bad if those who are called to work it happen to be a bad lot.” Will we, the proud citizens of this great nation, prove Thomas Carlyle right when he said that a “nation should be governed by its best elements or it will perish”. The portents are certainly alarming. 

 — The writer is the Vice-Chancellor of NALSAR University of Law, Hyderabad