Introduction
The Indian Constitution stands as the supreme law of the land, a foundational document guiding the governance of the world's largest democracy. This module delves into the conceptual bedrock of this document, exploring the meaning and significance of a Constitution itself, and the crucial concept of Constitutionalism, which ensures that governmental power is not absolute but limited by the rule of law.
Understanding these core principles is essential for appreciating the structure, functioning, and spirit of the Indian polity.
1.1.1: Meaning and Significance of a Constitution
A Constitution is a body of fundamental principles or established precedents according to which a state or organization is acknowledged to be governed. It serves as the supreme law, from which all other laws derive their authority.
- Defines powers and duties of government institutions (Legislature, Executive, Judiciary).
- Establishes relationship between state and citizens, guaranteeing rights and imposing duties.
- Outlines fundamental values and goals (e.g., justice, liberty, equality, fraternity).
- Provides a framework for stable governance, preventing arbitrary rule.
- Limits Governmental Power: Prevents tyranny by defining boundaries.
- Protects Rights: Safeguards individual liberties against state encroachment.
- Ensures Stability and Order: Provides predictable political framework.
- Reflects National Aspirations: Embodies collective will and ideals.
- Provides Identity: Creates shared national identity.
- Facilitates Dispute Resolution: Establishes peaceful conflict mechanisms.
Source: NCERT Class XI, 'Indian Constitution at Work', M. Laxmikanth.
Constitution vs. Ordinary Law
| Feature | Constitution | Ordinary Law |
|---|---|---|
| Authority | Supreme law of the land; source of all other laws. | Derives authority from the Constitution. |
| Amendment Process | Generally more rigid, requires special majority. | Flexible, can be amended by simple majority. |
| Scope | Deals with fundamental principles, governance structure, rights. | Deals with specific subjects, detailed regulations. |
| Supremacy | Cannot be overridden by ordinary law. | Must conform to the Constitution; can be challenged if unconstitutional. |
| Enacted by | Constituent Assembly (or special body/process). | Legislature (Parliament/State Legislature). |
Source: IGNOU, M. Laxmikanth.
1.1.2: Concept of Constitutionalism
Constitutionalism is the doctrine that a government's authority is limited by a body of fundamental law (the Constitution). It stands for the idea of a 'limited government' and 'rule of law', ensuring governmental power is not arbitrary or absolute, but exercised within constitutional bounds. It is the antithesis of arbitrary power.
Source: IGNOU, D.D. Basu.
The principle that the power of the state is not absolute but restricted by law and a Constitution. The government can only do what the Constitution permits and is forbidden from what it prohibits.
Mechanisms for Limitation:
- Fundamental Rights: Act as negative injunctions against the state.
- Separation of Powers: Distributes powers among different branches.
- Checks and Balances: Ensures mutual accountability.
- Judicial Review: Power of courts to strike down unconstitutional actions.
- Federalism: Divides power between central and state governments.
A concept championed by A.V. Dicey, it posits that a government should be ruled by law, not by men. It encompasses three core principles:
- Supremacy of Law: No one is above the law, including those in authority.
- Equality Before Law: Equal subjection of all classes to the ordinary law of the land.
- Predominance of Legal Spirit: Constitution principles result from judicial decisions.
Indian Context:
- Article 14: Embodies 'Equality before Law' and 'Equal Protection of Laws'.
- Basic Structure Doctrine (Kesavananda Bharati case, 1973): Rule of law is part of basic structure.
- Judicial Review: Essential for upholding supremacy of law.
Current Affairs Link: Electoral Bonds Scheme (Feb 2024)
The Supreme Court's judgement on the Electoral Bonds scheme emphasized transparency as a facet of fundamental rights (right to information) and indirectly reinforced the rule of law by striking down the anonymous funding system which potentially undermined fair elections and accountability.
A system designed to prevent any one branch of government from becoming too powerful, by allowing each branch to limit or check the powers of the other branches. It promotes cooperation, moderation, and compromise.
Purpose:
- To prevent abuse of power.
- To ensure accountability of governmental organs.
- To safeguard individual liberties.
- To maintain the democratic character of the state.
Examples in India:
- Legislature checks Executive: Question Hour, No-confidence motion, impeachment.
- Executive checks Legislature: President's veto, power to dissolve Lok Sabha.
- Judiciary checks Legislature: Judicial review of laws (e.g., striking down NJAC Act).
- Judiciary checks Executive: Judicial review of executive actions, PILs.
- Legislature checks Judiciary: Power to impeach judges, power to amend laws (within basic structure limits).
Mains Analysis: Debates on Separation of Powers and Checks & Balances:
- Judicial Overreach vs. Judicial Activism: Judiciary intervening in legislative/executive domains vs. protecting rights/filling vacuums.
- Executive Dominance: Concerns about growing executive power, especially during emergencies.
- Parliamentary Effectiveness: Debates on declining sittings, disruptions, weakening oversight.
Refers to the adherence to the core principles and values enshrined in the Constitution, even if not explicitly codified as strict legal rules. It implies respecting the spirit, rather than just the letter, of the Constitution. It's about inculcating a transformative constitutional vision.
Dr. B.R. Ambedkar's View:
Ambedkar emphasized that constitutional morality is not a natural sentiment but one that "has to be cultivated." It means giving precedence to constitutional values over sectional interests or temporary majoritarian impulses.
Supreme Court Pronouncements:
- Navtej Singh Johar v. Union of India (2018): Decriminalizing consensual adult homosexuality. SC observed "Constitutional morality is a paramount reference for the judiciary to uphold the spirit of the Constitution," prioritizing individual dignity and liberty.
- Indian Young Lawyers Association v. The State of Kerala (Sabarimala Case, 2018): Majority judgment relied heavily on constitutional morality to uphold equality and dignity of women, challenging discriminatory traditional practices.
Mains Analysis: Challenges in Upholding Constitutional Morality:
- Majoritarianism: Risk of majority will overriding fundamental constitutional values (minority rights, individual liberties).
- Populism: Political rhetoric appealing to popular sentiment, potentially undermining reasoned adherence to principles.
- Politicization of Institutions: Erosion of autonomy of constitutional bodies (EC, CBI) weakening checks and balances.
- Declining Deliberation: Reduced parliamentary debate and consensus-building affecting constitutional scrutiny.
1.1.3: Types of Constitutions
Written Constitution:
- Codified in a single document (e.g., USA, India, Germany).
- Pros: Certainty, clarity, stability, protects rights explicitly.
- Cons: Can be rigid, difficult to adapt.
Unwritten Constitution:
- Not codified in a single document; derived from conventions, customs, statutes, judicial precedents (e.g., UK, Israel).
- Pros: Flexible, adaptable, evolves with society.
- Cons: Less certainty, potentially less protection for rights.
Rigid Constitution:
- Requires a special, difficult process for amendment (e.g., USA, Switzerland).
Flexible Constitution:
- Can be amended by a simple majority, similar to ordinary law-making (e.g., UK).
Indian Constitution: A blend
- Flexible aspects: Some provisions by simple majority (e.g., new states).
- Rigid aspects: Most require special majority; some also state ratification.
Evolved Constitution:
- Grows over time through customs, traditions, conventions, judicial decisions (e.g., UK).
- Not drafted by a specific body at a specific time.
Enacted Constitution:
- Formulated and adopted by a Constituent Assembly or specific body at a specific time (e.g., India, USA).
- India's Constitution enacted Nov 26, 1949; came into force Jan 26, 1950.
Classification of Constitutions - Key Features
| Type | Key Characteristic | Example(s) |
|---|---|---|
| Written | Codified in a single, comprehensive document. | India, USA, Germany |
| Unwritten | Not codified; based on customs, conventions, statutes. | UK, Israel |
| Rigid | Difficult amendment process (special majority, etc.). | USA, Switzerland |
| Flexible | Easy amendment process (simple majority). | UK |
| Evolved | Developed organically over time; no single drafting. | UK |
| Enacted | Drafted and adopted by a Constituent Assembly. | India, USA, France |
Source: M. Laxmikanth.
1.1.4: Evolution of Constitutional Thought (Global Context)
The idea of limiting governmental power through law has evolved over centuries, drawing from various historical movements and philosophical ideas. Explore key milestones below:
A landmark document signed by King John of England, forced by nobles.
- Significance: First formal acknowledgment that the King's power was not absolute.
- Introduced principles like 'rule of law' (even the king is bound by law) and 'due process'.
- Significance: Led to establishment of parliamentary supremacy over the monarch.
- Bill of Rights established certain rights for Parliament and citizens (e.g., freedom of speech in Parliament, no taxation without parliamentary consent, limits on monarch's power).
- Consolidated the idea of a constitutional monarchy.
- Significance: The first comprehensive written constitution in the modern sense.
- Introduced: Separation of Powers, Checks and Balances, Bill of Rights (1791) - enumerated fundamental rights, Federalism, Popular Sovereignty.
- Significance: Championed ideals of Liberty, Equality, and Fraternity.
- The Declaration asserted universal human rights, popular sovereignty, and equality before the law.
- Influenced subsequent declarations of rights globally.
- Indian Constitution is a product of its unique historical context (colonial rule, freedom struggle) but profoundly influenced by these global constitutional developments.
- Government of India Acts (1919, 1935): Introduced elements of federalism, provincial autonomy, bicameralism, and separate electorates, serving as a blueprint for parts of the Indian Constitution.
- Objective Resolution (1946): Moved by Nehru, laid down fundamental philosophy and guiding principles, drawing from ideals of justice, liberty, equality, fraternity, and declaring India a Sovereign, Socialist, Secular, Democratic Republic.
- Borrowing Features: India adopted features like parliamentary system (UK), Fundamental Rights & Judicial Review (USA), Directive Principles (Ireland), Federalism with a strong center (Canada), etc., adapting them to its own needs.
Conclusion & Significance
The concepts of a Constitution and Constitutionalism are not mere academic exercises but are vital for the survival and flourishing of a democratic state. A well-crafted Constitution provides the roadmap, while constitutionalism ensures that the journey respects the foundational principles of limited government, rule of law, separation of powers, and the overarching spirit of justice and liberty.
India's journey as a constitutional democracy is a continuous process of upholding and strengthening these principles, especially in the face of contemporary challenges.
Prelims-Ready Notes
Core Concepts
- Constitution: Supreme law; defines powers/limits of government; protects rights; embodies national aspirations.
- Constitutionalism: Doctrine of limited government; government bound by Constitution; opposite of arbitrary rule.
- Pillars of Constitutionalism:
- Limited Government: Gov't power restricted by Constitution; not absolute.
- Rule of Law (A.V. Dicey): Supremacy of law, Equality before law, Predominance of legal spirit. Indian Context: Art. 14, Basic Structure Doctrine.
- Checks and Balances: Inter-branch oversight to prevent power concentration (e.g., Judicial Review, Parliamentary control).
- Constitutional Morality: Adherence to the spirit/values of the Constitution; Dr. Ambedkar's emphasis. SC cases: Navtej Singh Johar, Sabarimala.
Types & Evolution
- Types of Constitutions:
- Written: Codified single document (India, USA).
- Unwritten: Customs, conventions, statutes (UK, Israel).
- Rigid: Difficult amendment (USA).
- Flexible: Easy amendment (UK). India: Blend of Rigid & Flexible.
- Evolved: Grown over time (UK).
- Enacted: Drafted by specific body (India, USA).
- Evolution of Constitutional Thought:
- Magna Carta (1215): First formal limit on King's power, rule of law.
- Glorious Revolution (1688) & Bill of Rights (1689): Parliamentary supremacy, rights.
- US Constitution (1787): First written, separation of powers, Bill of Rights.
- French Revolution (1789): Liberty, Equality, Fraternity, universal rights.
- India: Influenced by these, G.O.I Acts 1919/1935, Objective Resolution.
Summary Table for Prelims
| Concept | Definition/Key Features | Indian Context/Examples |
|---|---|---|
| Constitution | Supreme Law; Framework for governance; Defines powers/rights. | India's comprehensive document, Preamble. |
| Constitutionalism | Limited Government by law; Rule of Law; Anti-arbitrary rule. | Basic Structure Doctrine; Art. 14; Judicial Review. |
| Limited Government | State power restricted by legal/constitutional bounds. | Fundamental Rights as negative injunctions. |
| Rule of Law | Supremacy of law; Equality before law; Legal spirit. | Art. 14; Kesavananda Bharati case. |
| Checks & Balances | Inter-branch oversight to prevent power concentration. | Judicial Review; Parliamentary oversight; Impeachment. |
| Constitutional Morality | Adherence to core values/spirit of Constitution. | SC Judgments (Sabarimala, Navtej Singh Johar). |
| Written Const. | Single codified document. | India, USA. |
| Unwritten Const. | Based on customs, conventions, statutes. | UK, Israel. |
| Rigid Const. | Difficult amendment procedure. | USA. (India is partly rigid). |
| Flexible Const. | Easy amendment procedure. | UK. (India is partly flexible). |
| Evolved Const. | Develops organically over time. | UK. |
| Enacted Const. | Formulated by a specific body (Constituent Assembly). | India, USA. |
Mains-Ready Analytical Notes
Debates on Constitutionalism in India
- Balancing Majority Rule and Constitutional Morality: Reconciling democratic principle of majority rule with protection of minority rights and fundamental values (e.g., Sabarimala judgment).
- Judicial Overreach vs. Protection of Constitutional Values: Judiciary's role in enforcing constitutionalism through judicial review; questions on its boundaries, especially in policy-making.
- Erosion of Checks and Balances: Concerns about executive dominance, weakening of parliamentary scrutiny, challenges to independence of constitutional institutions.
- Federalism and Constitutionalism: Balance of power between Centre and states (e.g., use of Article 356, GST Council's functioning).
Historical Trends and Continuity
- The Indian Constitution is not a sudden break but a continuum of institutional development (Govt. of India Acts, Nehru Report). It adapted globally accepted principles (e.g., parliamentary democracy, fundamental rights) to its unique socio-political context.
- The evolution of the Basic Structure Doctrine is a testament to the judiciary's role in preserving the core tenets of constitutionalism, ensuring limited government even against constitutional amendments.
Contemporary Relevance/Significance
- Rule of Law in Digital Age: Challenges of regulating online content, data privacy, and surveillance without infringing on fundamental rights, testing limits of state power.
- Constitutional Morality in Public Discourse: Increasing polarization and hateful rhetoric challenge fraternity and equality. Role of constitutional morality in guiding leaders and citizens is paramount.
- Data-backed examples:
- Freedom House Report 2023 (Democracy Index): India's status declined to 'Partially Free'.
- V-Dem Institute's Democracy Report 2023: Classified India as an 'electoral autocracy'.
- Electoral Bonds Case (Feb 2024): SC struck down the scheme, upholding transparency and citizens' right to information.
- Article 370 Abrogation (Dec 2023): SC upheld abrogation, but discussions on process, federalism, and fundamental rights continue.
Value-Added Points
- The concept of 'Transformative Constitutionalism' (emphasized by Justice Chandrachud) views the Constitution not merely as a legal document but as an instrument of social change, striving to achieve the emancipatory goals set out in the Preamble. This is directly linked to the idea of constitutional morality.
- The role of Constitutional Courts (SC and HCs) as guardians of the Constitution is crucial in enforcing constitutionalism and preventing executive or legislative overreach.
Current Affairs and Recent Developments
- Electoral Bonds Scheme Struck Down (Feb 2024): Supreme Court declared the scheme unconstitutional, reinforcing rule of law, limited government, and transparency (right to information).
- Article 370 Abrogation Upholding (Dec 2023): Supreme Court upheld abrogation but stressed importance of restoring statehood and holding elections, underscoring judicial scrutiny over executive actions and federal principles.
- Challenges to Freedom of Speech and Expression: Ongoing debates and court cases regarding online content regulation, sedition laws, and hate speech test constitutional principles of liberty and reasonable restrictions, and constitutional morality.
- Discussions on 'One Nation, One Election': High-level committee's report raises questions about electoral process restructuring and implications for federalism, parliamentary democracy, and state autonomy.
UPSC Previous Year Questions
Prelims MCQs
1. UPSC CSE 2012: The ideal of 'Welfare State' in the Indian Constitution is enshrined in its:
- (a) Preamble
- (b) Directive Principles of State Policy
- (c) Fundamental Rights
- (d) Seventh Schedule
Answer: (b)
Hint: While the Preamble sets the stage, DPSP directly aim for social and economic justice, promoting the welfare state ideal.
2. UPSC CSE 2015: "Rule of Law" as enshrined in the Constitution of India is NOT one of the principles of the basic structure of the Constitution. (Statement)
Answer: False.
Hint: Rule of Law was declared a part of the Basic Structure doctrine by the Supreme Court in the Kesavananda Bharati case (1973).
3. UPSC CSE 2017: Consider the following statements:
Which of the statements given above is/are correct?
- (a) 1 only
- (b) 2 only
- (c) Both 1 and 2
- (d) Neither 1 nor 2
Answer: (a)
Hint: While Parliament can place laws in the Ninth Schedule, their judicial review is not entirely barred. The SC, in I.R. Coelho case (2007), ruled that laws placed in the Ninth Schedule after April 24, 1973 (date of Kesavananda Bharati verdict) are open to judicial review if they violate the basic structure of the Constitution. This reflects judicial power in upholding constitutionalism.
Mains Questions
1. UPSC CSE 2019 (15 marks): "While the national parties in India advocate centrist positions, the regional parties are often inclined to ethnic loyalism." Discuss.
Direction: Though not directly about constitutionalism, this question touches upon the practical challenges to national integration and constitutional values (equality, fraternity) when regional parties prioritize narrow identities over broader national interests. Discuss how such inclinations can strain federalism and lead to issues of governance that challenge the constitutional spirit.
2. UPSC CSE 2018 (15 marks): "Constitutional morality is rooted in the Constitution itself and is founded on the essential principles of the constitutional structure. Explain the doctrine of 'constitutional morality' with the help of relevant court cases."
Direction: Define constitutional morality, emphasizing Dr. Ambedkar's views. Explain how it goes beyond mere legality. Provide relevant SC judgments like Navtej Singh Johar v. UOI (2018) (Section 377) and Indian Young Lawyers Association v. State of Kerala (2018) (Sabarimala) where the court explicitly invoked and applied the doctrine to uphold individual rights and constitutional values against societal norms or traditions.
3. UPSC CSE 2016 (12.5 marks): "What do you understand by the concept of 'freedom of speech and expression'? Does it cover hate speech also? Why do the courts have to strike a balance between this freedom and other fundamental rights?"
Direction: Define freedom of speech (Art 19(1)(a)) and reasonable restrictions (Art 19(2)). Explain the dilemma with hate speech and how it clashes with dignity (Art 21) and equality (Art 14). Emphasize the constitutional role of courts to balance conflicting fundamental rights, ensuring that no single right becomes absolute and undermines the overall constitutional scheme (a facet of checks and balances and constitutional morality).
Original MCQs for Prelims
1. Which of the following elements are considered part of the "Basic Structure" of the Indian Constitution, as upheld by the Supreme Court?
Select the correct answer using the code given below:
- (a) 1, 2 and 3 only
- (b) 1, 3 and 4 only
- (c) 2 and 4 only
- (d) 1, 2, 3 and 4
Answer: (a)
Explanation: While the Indian Constitution is written and partially rigid, these are features, not necessarily part of the non-amendable 'Basic Structure' itself. Rule of Law, Parliamentary System, and Judicial Review are established components of the Basic Structure doctrine (Kesavananda Bharati, Minerva Mills, S.R. Bommai cases).
2. Consider the following statements regarding 'Constitutional Morality':
Which of the statements given above is/are correct?
- (a) 1 only
- (b) 2 only
- (c) 3 only
- (d) 1 and 2 only
Answer: (c)
Explanation: Constitutional morality goes beyond the literal text and emphasizes the spirit/values (Statement 1 is incorrect). Dr. Ambedkar explicitly stated that it "has to be cultivated" (Statement 2 is incorrect). The Supreme Court indeed invoked constitutional morality in the Sabarimala case (Indian Young Lawyers Association v. The State of Kerala, 2018) to strike down discriminatory practices based on gender (Statement 3 is correct).
Original Descriptive Questions for Mains
1. "Constitutionalism is not merely about having a Constitution, but about adherence to its foundational spirit." Elaborate on this statement in the context of India's democratic journey, highlighting the role of constitutional institutions in upholding this spirit. (15 marks)
Key Points/Structure:
- Introduction: Define Constitution and Constitutionalism, distinguishing between the two. Emphasize that constitutionalism is the 'spirit' while the Constitution is the 'body'.
- Body:
- Foundational Spirit: Discuss key principles like rule of law, limited government, democracy, justice, liberty, equality, fraternity (Preamble values).
- India's Democratic Journey & Challenges: Briefly trace how India has upheld these principles since independence, but also discuss challenges like executive overreach, majoritarian tendencies, declining parliamentary debate, and social inequalities.
- Role of Institutions: Judiciary (Judicial Review, Basic Structure, Constitutional Morality cases), Legislature (accountability, law-making), Executive (adhering to limits, fair implementation), Independent bodies (EC, CAG, UPSC).
- Contemporary Relevance: Link to current events where constitutional principles are tested (e.g., federalism, free speech, privacy).
- Conclusion: Reiterate that constant vigilance and active participation of citizens, along with robust institutional functioning, are essential for deepening constitutionalism in India.
2. Distinguish between a 'rigid' and a 'flexible' constitution. Discuss how the Indian Constitution embodies a unique blend of both, and analyze the advantages and disadvantages of this approach for a diverse and evolving nation like India. (10 marks)
Key Points/Structure:
- Introduction: Briefly define what a constitution is and mention the concept of amendment.
- Distinction between Rigid and Flexible: Explain difficult vs. easy amendment processes with examples (US vs. UK).
- Indian Constitution - A Unique Blend:
- Flexible aspects: Provisions amended by simple majority (e.g., new states).
- Rigid aspects: Provisions requiring special majority (Art 368), and those needing state ratification.
- Advantages of this blend for India: Stability, Adaptability, Protects Federalism, Prevents Tyranny of Majority.
- Disadvantages (Potential Challenges): Complexity, Judicial Intervention (Basic Structure Doctrine).
- Conclusion: Conclude that this adaptive yet stable framework has largely served India well, allowing for both continuity and change in a vast and diverse nation.