Justice Biplab Kumar Sharma
Former Judge, Gauhati High Court
The word "Constitution" is a Latin word "Constituere" conveying the meaning of founding together, founding in concert or creating jointly (to set up, to establish or to appoint). A nation is built with some preconceived notions and India is no exception to the same.
The Constitution of India was drafted by the Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar that was set up by the Constituent Assembly on 29.08.1947 and was adopted on 26.11.1949 which became effective from 26.01.1950. It was created by the people of India and for the people of India as emphasized in the Preamble with the phrase "We the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic…" providing for Justice, Liberty, Equality and to promote among them all Fraternity. It lastly recites indicating about its adoption on 26th November 1949 "do hereby adopt, enact and give to ourselves this Constitution".
Tracing back a little bit of history, British came to India in the year 1608 which was preceded by Queen Elizabeth I when she gave a royal charter to form the British East India Company in London on 31st December 1600. During that time undivided India was Mughal rule. With the death of Aurangzeb in 1707, the British East India Company who had come to India for trade, commerce and intercourse started taking interest in administration, more particularly after the Battle of Plassey in 1757.
After the Sepoy Munity of 1857, some Constitutional means like India Council Act, 1858 which was preceded by Regulating Act, 1773; India Council Act, 1909 and followed by Government of India Act 1919 and 1935 came into being. Thereafter, the Indian Independence Act, 1947 was enacted which was preceded by the Constituent Assemble under the Cabinet Mission Plan entrusted with the task of drafting the Constitution. The expressions in the Preamble "Socialist, Secular" stood incorporated in the Preamble in 1976 by the 42nd Amendment to the Constitution.
In a Constitutional democracy, the Rule of Law and Constitutional Morality constitute fundamental and indispensable principles of Constitutional Governance. It goes without saying that the Constitution of India is the supreme law of the land and it is on the basis of this Constitution, India is a democratic country where the will of the people within the reasonableness is supreme. The framework of the Government and its powers and limitations are within the fold of the Constitutional Governance which means government according to Constitutional Principles; exercise of public power within the Constitutional limits; protection of Fundamental Rights; Separation of Powers; Institutional Independence, etc.
Within the above parameters the Constitutional Governance cannot be without the Rule of Law. No person is above the law and always subjected to governmental power which again means to be exercised according to law and within the limits prescribed by the Constitution of India. The important prescriptions inbuilt in the Constitution can be found in Article 14, 21, 13, etc. While Article 14 speaks of Equality before law, Article 21 guarantees Protection of Life and Personal Liberty; Article 13 provides for declaration of laws inconsistent with fundamental rights as void. Side by side Article 32 and 226 provide for Constitutional remedies towards enforcement of those fundamental rights.
Rule of Law is paramount in a democratic country without which the government may become arbitrary with the curtailment of individual liberty and the public authorities my exercise autocratic and unlimited discretion in the matters concerning equality before law. Consequently, the democracy may become electoral rather than Constitutional. This is precisely the reason why in a democratic setup, rule of law is considered to be paramount with the prescription and emphasis of Supremacy of the Constitution.
Above two aspects are closely connected with the concept of Constitutional Morality which means respect for and adherence to the values, principles and institutions established by the Constitution. It is always reciprocal towards discharge of duties and functions by the public authorities and the citizens. They need to respect the values such as liberty, equality, justice, dignity, fraternity, secularism, democracy, rule of law, individual rights and Constitutional limitations of power. This idea so fundamental for a democratic country was forcefully emphasized by Dr. B.R. Ambedkar towards achieving the goal of Constitutional Morality by way of functioning of the Constitutional democracy.
While the Rule of Law promotes the idea of exercise of governmental power in accordance with law, the Constitutional Morality put emphasis on exercise of governmental power consistently with the values and spirit of the Constitution. Similarly, while the Rule of Law controls the arbitrary exercise of power, the Constitutional Morality ensures Constitutional values in the exercise of power. Together they provide the foundation for Constitutional Governance.
Whenever the above values are infringed with impunity, the Judiciary plays the pivotal role as the Guardian of the Constitution, fundamental rights, Rule of Law and Constitutional limitations. It is through the process of Judicial Review, the courts can examine the Constitutional validity of the governmental action or legislation promulgated by it. It is through this process various Constitutional doctrines, so fundamental to the Basic Structure of the Constitution and the Rule of Law, the Supreme Court has laid down certain doctrines like the Basic Structure of the Constitution being unamendable; supremacy of the Constitution; Rule of Law; Separation of Powers; democracy; federalism; secularism; dignity and liberty of the individual, etc.
Even within the framework of the Constitution and the functioning of the Constitutional entities towards a good governance, often we experience arbitrary exercise of power, political interference with institutions, misuse of discretionary power, corruption, discrimination, etc. This is coupled with the lack of Constitutional awareness amongst the citizens. We may recall the period (1975-1977) during which Emergency was declared in India which led to curtailment of individual and institutional rights, interference with the freedom of speech, confinement of political rivals in prisons and other such social evils fundamentally opposed to democratic values enshrined in a democratic country like India rendering the very concept of democracy so well cherished in the Preamble referred to above redundant.
Constitutional Governance cannot depend on the judiciary alone. It depends on executive self respect, strict legislative fidelity and an alert citizenry. The Rule of Law is a guiding factor towards lawful action of the state machineries. On the other hand the Constitutional Morality guide us in our action towards defending the democratic values. Constitutional Governance is not merely to have a government according to law but to have it as per the values enshrined in the Constitution. Power must be exercised legally, and it also must also be exercised constitutionally. The Constitution places this dual responsibility upon the state towards achieving the governance by Rule of Law.
The ultimate objective of Constitutional Governance is not merely to have government according to law, but to have government according to the Constitution and its values. The Rule of Law prevents arbitrary exercise of power, while Constitutional Morality ensures that institutions respect the deeper constitutional values of justice, liberty, equality, dignity and fraternity. The Constitution places a dual responsibility upon the state: power must be exercised legally, and it must also be exercised constitutionally. Constitutional Governance is the governance of power by law, limited by the Constitution and guided by Constitutional values.
Happiness depends on what you can give, not on what you can get
— Swami Chinmayananda