Chapter 5- Philosophy & Features of Indian constitution

TOPICS:

1. Preamble & its salient features (refer old syllabus notes)

2. Constitutionalism
3. Dr. B. R. Ambedkar’s & Nehru’s Contribution in making of Indian Constitution

2. What is Constitutionalism?
The concept of constitutionalism is a mechanism that provides legitimacy to a democratic
government. It cannot and should not be confused with the legality of the acts of the officials
in a government setup. Constitutionalism is far more important than having a written
Constitution. With some exceptions most of the countries have Constitutions but it in no way
means that they practice constitutionalism. Some of the basic principles developed over time
that embody the concept of constitutionalism are separation of powers, judicial control and
accountable government.

 In India, constitutionalism is considered to be a natural corollary to the fundamental

governance of the country.
 The Constitution of India with the aid of various legislations has developed a detailed
and robust mechanism to put into place administrative mechanisms for the smooth
functioning of the machinery of governance.
 However, due to a variety of factors, the distance between the government and the
governed has been growing with every passing year. The rich are getting richer and
the poor have resigned to their fates, areas which were backward sixty years ago
remain as such.
The concept of constitutionalism has been recognised by the Supreme Court in Rameshwar
Prasad v. Union of India. The Court stated, “The constitutionalism or constitutional system of
Government abhors absolutism – it is premised on the Rule of Law in which subjective
satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.”

In IR Coehlo v. State of Tamil Nadu, the Court held that Constitutionalism is a legal principle
that requires control over the exercise of governmental power to ensure that the democratic
principles on which the government is formed shall not be destroyed. Chandrachud, CJ, in
Minerva Mills case observed, – “The Constitution is a precious heritage and, therefore, you
cannot destroy its identity”.

Principles of Constitutionalism
Constitutionalism is an amalgamation of the following underlying principles:
Separation of Powers

Separation of powers divides the mechanism of governance into three branches i.e.,
Legislature, Executive and the Judiciary. This not only prevents the monopolization of power,
but also creates a system of checks and balances. As this division of powers is in the
Constitution itself, this becomes an effective tool for ensuring Constitutionalism.

Responsible and Accountable Government

In a democratic setup, the government is elected so that it can serve the people who help elect
it. It is in this sense that the electors have a right to demand accountability and answers from
their government. Therefore, when the government fails the expectations of the electorate, the
authorization to govern is revoked by voting them out.

Popular Sovereignty

The concept of popular sovereignty lays down that the government derives its legitimacy
from the people. No corporate body, no individual may exercise any authority that does not
expressly emanate from it. Even though there is a certain sovereign entity that is empowered
to govern, ultimate sovereignty resides in the nation. The power of such a sovereign entity
emanates from the public.

Rule of Law

The presence of rule of law means that the government does not belong to men but to the
laws. Dicey lays down three essential components of Rule of Law:

 Nobody is to be punished except for a specific breach of law that is established in an

ordinary legal manner before ordinary courts of law.
  No one is above the law.
 Courts play a vital role in protecting the rights and freedoms of an individual.
Independent Judiciary

The independence of the Judiciary is the essence of any liberal democracy and the foundation
of a free society. The Judiciary is the upholder of Rule of law and if its independence is taken
away, it puts the entire rule of law in jeopardy. The Constitution also envisages the separation
of the judiciary from the Executive under Article 50.

Individual Rights

The rights of the individual shall be at the highest pedestal for constitutionalism to thrive. The
constitutional setup in India gives these rights the importance that they deserve by engraving
them in Part III of the Constitution. These individual rights have not only been protected by
the courts but have also been interpreted in a manner where their effect and implementation
has broadened. The enforcement of these rights is ensured by the Constitutional Courts i.e.
the Supreme Court and the High Courts.

Civilian control of the military

Apart from these features, constitutionalism envisages that the control of the military should
be in the hands of a civilian government so that the military does not interfere in the
democratic decision making or attempt a military coup.

Police Accountability

Constitutionalism also envisages that police while performing its duties shall uphold the
rights, freedoms and dignity of the individuals, the same can be ensured by bringing the
police under the control of laws and courts.

Conclusion

The concept of constitutionalism has existed and thrives in all functioning democracies.
However, over the years the Governments have learned to use government apparatus for their
own benefits instead of benefitting the citizens. The government by giving backdoor entries
to corporate interests in policy-making has vitiated the policymaking process whose primary
aim is the welfare of the larger population. The very document that was adopted to ensure the
rights of individuals is being used to suppress and disenfranchise them.

The problem is that the Constitution cannot interpret itself and has to be interpreted by the
men who hold power. The institutions that were the bulwark of Constitutionalism are either
crumbling or have been effectively rendered weak and incapable. Checks and balances have
been diluted to a point where their importance is merely academic. The criminalisation and
influence of money power into the corridors of politics and governance have worsened an
already volatile system. The frustrations that are building up due to the apathy of the
government in utter disregard of constitutionalism are extremely dangerous and this slide
needs to be stopped.

3.Dr. B. R. Ambedkar’s & Nehru’s Contribution in making of Indian Constitution

1. Dr. Ambedkar

On 29th August 1947, after passing one resolution, the Constituent Assembly appointed a
‘Drafting Committee” with seven members, including Dr. Ambedkar, to prepare a draft of the
Constitution of independent India. It is said that when the Constitution of India was drafted,
Pandit Nehru and Sardar Vallabhbhai Patel thought of inviting and consulting Sir Guor
Jennings an internationally known constitutional expert of those times.

When approached for advice in the matter, Gandhiji is reported to have told them why they
should be looking for foreign experts when they had the right within India an outstanding
legal and constitutional expert in Dr. Ambedkar who ought to be entrusted with the role
which they badly need as he so richly and rightly deserved. The Law Minister, Dr. Ambedkar,
was appointed the Chairman of the Drafting Committee. The seven members, including the
Chairman of the Drafting Committee, were as follows:

1. Dr. B.R. Ambedkar, Chairman

2. N. Goipalswami
3. Alladi Krishnaswami Ayyas
4. K.M. Munshi
5. Saijo Mola Saadulla
6. N. Madhava Rao and
7. D.P. Khaitan

Dr. Ambedkar had a charismatic personality. He was pragmatic par excellence and never
allowed himself to be swayed by abstract ideas and ideals. He strongly believed political
independence could not assure social solidarity or national integration without social justice.
Being a democratic socialist, he propagated that fundamental rights have little meaning to
people in the absence of social democracy.

Ambedkar sought to achieve certain objectives through the Constitution of India by

incorporating the following principles:

 Making the Indian constitution workable, flexible, and strong enough to hold the
country together in peace and wartime
 Providing special safeguards to minorities and certain social and educationally
backward classes
 Incorporating the principle of one man, one value, and one man, one vote
 Incorporating exceptions and qualifications to the FRs while advocating preventive
detention President of India.
  Abolishing untouchability and forced labor to achieve the ideal of 'one man, one
value, and one man, one vote' and placing all people equally before the law
 Securing equal protection of laws for every citizen as also freedom of profession and
equality of opportunity
 Incorporating the right to constitutional remedies

Dr. Ambedkar was the first and foremost leader of the oppressed classes. The struggle of the
oppressed classes for human rights and socio-political equality from the twenties to the
fifties of the 20th century is woven around his name Being elected Chairman of the Drafting
Committee, Dr. Ambedkar played a key role in viewing the structure of the government and
the forms of the Constitution.

2. Pt. Nehru

It was Jawaharlal Nehru who set out to realise the dream of a strong and resurgent India. He
steered the nation to the path of recovery and modernisation. Nehru had neither the resources
or the experience to administer the country. Yet, it was with his patriotism, dedication and
commitment that he translated the values of the Congress into the Constitution of India.

It was Nehru who proposed the idea of fundamental rights and socio-economic equality
irrespective of caste, creed, religion and gender. He invariably advocated the abolition of
untouchability, right against exploitation, religious tolerance and secularism. He championed
the idea of freedom of expression, right to form association, and was of the firm belief that
statehood would ensure social and economic justice for labour and peasantry and give voting
rights to all adult citizens. These propositions phrased by Jawaharlal Nehru made him the
darling of India.

Despite criticism from contrasting political hues and some schools of thought, Nehru’s
contributions continue to echo unwaveringly even today.

Here are 5 big decisions that nicknamed him an architect of modern India:

Establishing institutions of excellence

It was Nehru who provided the scientific base for India’s space supremacy and engineering
excellence. With the establishment of Indian Space Research Organisation (ISRO), Indian
Institutes of Technology (IITs) and universities, it was Nehru who put India on the path of
development. Also, the foundation of the dual tack nuclear programme helped India achieve
its nuclear enabled status. He also potentially set the pitch for industries, factories and the
manufacturing sector paving the way for a journey of sovereign India.

Beginning of the Five-Year Plan

With his vision and deep understanding of the pulse of the nation, Nehru introduced the idea
of a Five-Year Plan for effective and balanced utilisation of resources, something that India
continues to benefit from. The First Five-Year Plan was introduced in 1951 when India, in the
backdrop of the Partition, was faced with the influx of refugees, severe food shortage and
sky-rocketing inflation. The FYP put the spotlight on agriculture, irrigation and development
of the primary sector. The target GDP growth of the First Five-Year Plan was 2.1%, but the
country recorded a growth of 3.6% that year under the stewardship of Nehru.

Institutionalising India’s democratic foundation

Nehru has always been seen as a true believer of democracy with a strong sense of
institutionalisation of democracy where the concept of equal rights of citizens would take
precedence over all societal divisions. India had just emerged from the shackles of a
dictatorial British establishment and falling into the trappings of another ‘Mai-Baap Sarkar’
could have been a possibility. But Nehru laid up the foundation of a vibrant democratic
establishment in India.

It was Nehru under whose regime the Election Commission of India, an autonomous
constitutional body responsible for administering election processes in the country, was set up
in accordance with the Constitution on January 25, 1950. The Election Commission of India
conducted its first general election for the Lok Sabha which began in October 1951 and
ended on till February 1952.

Making it the largest election held that time, around 173 million people cast their vote, no
mean achievement as most of the voters were either uneducated or not familiar with the
electoral system. Political leaders led by Nehru played pivotal roles in sensitising people and
encouraging them to participate in the first Lok Sabha elections and exercise their franchise.

Shaping foreign policy

Pandit Nehru made indefatigable efforts to shape India’s foreign policy. As Prime Minister,
Nehru held additional charge of the Ministry of External Affairs until his death. When India
became independent, the world was recuperating from the calamitous World War II. It was a
big challenge for Nehru to stitch relations with other countries amicably in the face of the
changing power of balance in the United Nations.

Under Nehru’s guidance, India became the first country to adopt the Policy of Non-
Alignment. The Asians Relations Conference was organised in Delhi in 1947, where India’s
foreign policy was proclaimed. As many as 29 countries attended the conference which
strengthened the solidarity of all Asian countries. India still benefits from the Nehruvian
foreign policy. It is the country’s robust foreign policy that allows India to keep balance in
maintaining foreign relations.

Nehru’s Panchsheel Agreement also served as the foundation for India-China relations. The
Panchsheel Agreement was signed by Prime Minister Jawaharlal Nehru and Premier Zhou
Enlai and adopted in
December 11 1957. The essence of Panchsheel: To put the emphasis on peaceful co-existence
and cooperation for mutual benefit.

India as welfare state

Pandit Nehru strongly advocated a welfare state— a blend between a capitalist and socialist
system of governance. Nehru had travelled across the world and closely observed the
working of various forms of governments that were in existence during that time. He
witnessed the exploitation by capitalists during the time when colonialism was at its peak.
Having meticulously gone through the pros and cons of the capitalist and communist systems
of governance, Nehru came up with the idea of a ‘welfare state’ that India followed. A
welfare state ideally provides basic economic security for its citizens by protecting them
from market risks associated with unemployment, sickness and other risks connected with old
age.