Why do Constitutions Matter?

As Alexander Hamilton said, the people of thirteen colonies must have been the first to be given the opportunity to define their Constitution from ‘reflection and choice’, but in reality whether the Constitution making process of The United States was inclusive of the choices of different groups is a contentious claim. Inclusiveness, over the time has become quintessential in modern day Constitution making process and it is also reflected in the Indian Constitution making, when Jawaharlal Nehru said in constituent assembly “…But you must not ignore the source from which this Assembly derives its strength. Governments do not come into being by State Papers. Governments are, in fact, the expression of the will of the people. We have met here today because of the strength of the people behind us and we shall go as far as the people not of any party or group but the people as a whole–shall wish us to go. We should, therefore, always keep in mind the passions that lie in the hearts of the masses of the Indian people and try to fulfill them.”

What are Constitutions?

One may argue at this stage that is Constitution making important at all? Why do we make Constitution when there can be a stable society even without it? Constitutions are generally considered to be a higher law and this is often (mis)understood from Hans Kelson’s idea of Grund norm, which in simpler terms means 'a higher law (norm) regulating the existing laws or norms of the State'. However this is an abstract notion, while constitution do set rules for establishment of institution and it's working, it is not limited to be a mechanical instrument for regulating State, as Constitution within itself entails the baggage of Constitutional identity and reflects the intent of breaking away from existing legal structure whether in the formation of a new State, which has escaped from horrors of colonialism or a new state which wants to overhaul their ideological & historical belief. Mark Tushnet adds, that Constitutions today are, “probably regarded by the international community as a prerequisite to statehood, perhaps not as a matter of formal international law but as a matter of practical reality”. According to the constitutional court of South Africa, “The Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It retains from the past only what is acceptable and represents a radical and decisive break from that part of the past which is unacceptable. It constitutes a decisive break to a constitutionally protected culture of openness and democracy and universal human rights for all ages, classes, and colours. The past was pervaded by inequality, authoritarianism, and repression. The aspiration of the future is based on what is justifiable in an open and democratic society based on freedom and equality. It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted to give effect to the purposes sought to be advanced by their enactment.”

Constitutions and aspirations of the countries

Constitutions are hence, much more than a legal instrument as there are various attributes adduced to it, which collectively forms a “constitutional identity” of the state, enabling us to determine the specific aspirations, aversions and commitments of a country with an undertone of nations past and its evolving political structure. When India achieved its freedom in 1947 against the British it was not just independence of the territory but also the independence of fortunes. Fortunes of now being able to govern own self, elect our leaders, make own laws and to experience freedom of life, expression, occupation, speech and of all those basic enmities which the country was denied categorically. India chose to follow the mode of governance through bicameral parliamentary system with a prime minister in similar lines to that of of United Kingdom but it also brought to itself the indigenous element or Constitutional identity by constituting its own ‘constituent assembly’ to write its own Constitution, which had cross constitutional influence but at the same time was ‘Indianised’ which is visible in the text of Preamble and many of its Article. It was a document which did not only mark swift ‘transfer of power’ from them to us but also enabled the people of country equality, liberty and fraternity amongst many other societal changes in democracy. The above observations vindicate the understanding of aspirations and commitment of a country reflected through the Constitution.

The aspirations and Constitutional identity of Indian Constitution making are also highlighted by Professor Arun K Thiruvengadam in his book<6> has argued that, the Indian Constitution sought to achieve several goals simultaneously. At the first level, it sought to deliver ‘political freedom’ after two centuries of colonel rule, when basic civil and political rights and freedoms had been unavailable to ordinary people. At the second level, it sought to lay the blue print for ‘economic development’ of vast sub continental nation, which was an imperative for a populace that was mostly illiterate, poor and disproportionately situated in rural societies that had limited access to many essential social goods and infrastructural facilities. At the third level, it sought to tackle deeply entrenched social practices that existed in pre-colonial India for centuries. The more pervasive problems-such as discrimination on the basis of caste, religion and gender-preceded colonialism but their prevalence was exacerbated by colonial practices. It is also argued that the individual liberty of its citizen is at the core of the Constitution. These determinations about aim of Constitutions are nothing but the aspirations which were reflected in Constitution making and which with time have stayed with us in forms of ‘interpretations’, thus hailing Constitutions as ‘living or organic’.

Conclusion

The Constitution therefore, is not merely the textual body of norms but is also reflective of choices which we the people took upon our self to be subjected to. It is manifestation of our aspirations of being a democratic, sovereign, socialist, secular, republic and it also indicates urbanely our aversion to certain practices which we resolve to let go off. At the time when India decided to adopt a written Constitution after extensive deliberations of 2 year, 11 months and 18 days a decolonization phase in the world was ongoing as many countries declared themselves to be independent but many were not able to reconcile the popular demand of its citizen, economic and social growth and its constitutional obligation which led to slumping of some of them back into fascism or even disintegration, commonly referred to as ‘Constitutional backsliding’, but even in this time India held its head and nose high and one of the reason which can be attributed for this is the, “Constitution”, its commitment to the Constitutional mandates, aspirations and aversions set by its forefathers, its flexibility in amending as and when time calls for, it’s beautiful cosmology of checks-and balance and ideals of liberal constitutionalism, collectively preserving the spirit and constitutional identity of the State. Today, in times when rights, liberties or even ideals are at brink of collapsing worldwide and threat of ‘populism’ looms around - to ensure its citizen rights and freedom, liberty and dignity, institutional independence and to maintain it's constitutional identity, The Constitutions matter!

The Federalist no. 1 (Hamilton).

I, Constituent Assembly Debates, 1.

Mark Tushnet, Advanced Introduction to Comparative Constitutional law,  (10) Edward Elgar Publishing, Inc.  (2014).

Shaballala and Others v. Attorney General of the Transvaal and Another, 1996 South Africa 725 (C.C.).

Tom Ginsberg & Rosalind Dixon , Research Handbook on Comparative Constitutional Law, (141)  Edward Elgar Publishing, Inc  (2011).

<6> Arun K Thiruvengadam, The Constitution of India: A Contextual Analysis, Bloomsbury, New Delhi, (2018).