THE PHILOSOPHY OF THE CONSTITUTION

a)conceptual structure of constitution- meaning of various terms

b)grasp of set ideals embedded in the constitution

• A political philosophy approach is needed to find out moral content, evaluate claims and use it to arbitrate between varying interpretations of many core values.
• The Japanese Constitution of 1947 is popularly known as the Peace Constitution. the philosophy  of the Japanese constitution is thus based on the idea of peace

Constitution as Means of Democratic Transformation: The Constitution restricts the exercise of power. Modern states are powerful, the Constitution provides basic rules to prevent them from turning tyrannical. Why do we need to go back to the Constituent Assembly: Why search for legal and political ideas in the context of America their constitution was written in the late 18th century so it is absurd to apply the values to the 21st century however in the case of India, the world of original framers and present-day world may not have changed so drastically.

1. Political Philosophy of our Constitution

Individual Freedom

• AS early as the 19th century Ram Mohan Roy protested against the freedom of the press by the British colonial state.
• The infamous Rowlatt Act, which national movement opposed vehemently sought to deny this basic freedom
• It is not surprising therefore that freedom of expression is an integral part of the constitution.so is the freedom from arbitrary arrest.
• For over forty years before the adoption of the constitution every single resolution, bill, or scheme report of the national congress mentioned individual rights.

Social Justice 

It means providing equal social, political, and economic opportunities and rights In it there is the vision of a society in which the distribution of resources is equitable.

• Indian constitution liberalism is different from the classical Western sense Classical liberalism always privileges the rights of the individual over the demands of social justice and community values.
• Indian constitution liberalism differs in two ways-
• A)it was always linked to social justice for eg provision of reservation to sc/st such special measures required to overcome age-old injustice and give meaning to their right to vote

Indian liberalism has two streams. the first stream began with Ram Mohan Roy, who emphasized individual rights particularly the rights of women. The second stream included thinkers like K.C. Sen, Justice Ranade and Swami Vivekananda. They introduced the spirit of social justice within orthodox Hinduism. For Vivekananda, such a reordering of Hindu society could not have been possible without liberal principles.

Respect for Diversity and Minority Rights 

Article 29 provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own shall have the right to conserve the same.  It grants protection to both religious as well linguistic minorities. minority communities, Christians, Sikhs, Buddhists, and Zoroastrians.

Currently, only those communities notified under section 2(c)of the NCM ACT 1992 by the central government are regarded as a minority.in 2014 jains were also notified as a minority community.

• This was a huge challenge for the makers of the Constitution: how to make communities liberal in their approach and foster a sense of equal respect among them under existing conditions of hierarchy or intense rivalry?
• More importantly, India is a land of multiple cultural communities. Unlike Germany or France, we have several linguistic and religious communities. It was important to ensure that no one community systematically dominates others.
• One such right is the right of religious communities to establish and run their own educational institutions. Such institutions may receive money from the government. This provision shows that the Indian Constitution does not see religion merely as a ‘private’ matter concerning the individual.

Secularism

Secularism means the separation of religion from political, economic, social, and cultural aspects of life, this term was added by the 42 Constitutional Amendment of 1976.

• The mainstream, western conception, of secularism means mutual exclusion of state and religion to protect values such as individual freedom and citizenship rights of individuals.
• The term ‘mutual exclusion’ means this: both religion and state must stay away from the internal affairs of one another.
• mutual exclusion means that religion and state must be strictly separated. What is the purpose behind strict separation?
• TO safeguard the freedom of individuals. The state must, therefore, not hinder religious organisations either. In short, states should neither help nor hinder religions. Instead, they should keep themselves at an arm’s length from them. This has been the prevalent Western conception of secularism.
• Conditions in India were different and to respond to the challenge they posed, the makers of the Constitution had to work out an alternative conception of secularism. They departed from the Western model in two ways and for two different reasons.

Right of Religious Groups: Intercommunity equality was as necessary as equality between individuals if one community is dominated by others then its members would be significantly less free Indian constitution grants rights to all religious communities such as the right to establish and maintain educational institutions freedom of religion in india means the freedom of region of both individual and communities.

State Power of Intervention: Religious-sanctioned customs such as untouchability are deeply rooted so state active intervention is needed. the state interfered in affairs of religion and such interference was not always negative. Three core features of the Constitution are

a) our constitution reinforces and reinvents forms of liberal individualism this is important in a backdrop of society where community values are often indifferent and hostile to individual autonomy

b) The constitution upholds the principle of social justice without compromising individual liberties commitment to caste-based affirmative action programme shows how India was ahead then other nations.

c) against the background of inter-communal strife the constitution upholds its commitment to group rights

Universal Franchise

Article 326 defines a universal adult franchise as the basis for election to all levels of the elected government it refers that all citizens who are 18 years and above irrespective of their caste, religion, colour, race, or economic condition are free to vote.

• As early as the Constitution of India Bill (1895), the first non-official attempt at drafting a constitution for India, the author declared that every citizen, i.e., anyone born in India, had a right to take part in the affairs of the country and be admitted to public office. The Motilal Nehru Report (1928) reaffirms this conception of citizenship, reiterating that every person of either sex who has attained the age of twenty-one is entitled to vote for the House of Representatives or Parliament. Thus from very early on, universal franchise was considered as the most important and legitimate instrument by which the will of the nation was to be properly expressed.

Federalism

Federalism is a system of government in which powers have been divided between the centre and its constituent parts such as states or provinces.  Article 1 of the Indian constitution states that India is BHARAT the union of states. in a true sense, India is not a federation like the USA as in India the country is the indestructible union of states nor states have signed any treaty for merging with the union

• Asymmetrical Federalism, by introducing Jammu and Kashmir (370) and Northeast (371) articles India anticipates asymmetrical federalism.
• there are important constitutionally embedded differences between the legal status and prerogatives of different sub-units within the same federation.
• Unlike the constitutional symmetry of American federalism, Indian federalism has been constitutionally asymmetric.
• Article 371A, the privilege of special status was also accorded to the North-Eastern State of Nagaland. This Article not only confers validity on preexisting laws within Nagaland but also protects local identity through restrictions on immigration. Many other States too, are beneficiaries of such special provisions.

National identity: this common national identity was not incompatible with distinct religious or linguistic identities. The Indian Constitution tried to balance these various identities. As Sardar Patel put it, the main objective was to evolve ‘one community

Procedural Achievements: five core features are what might be called the substantive achievements of the Constitution. However, there were also some procedural achievements. many groups and interests were not adequately represented in the Constituent Assembly. However, the debates in the Assembly amply show that the makers of the Constitution wanted to be as inclusive in their approach as possible. Second, it reflects a spirit of compromise and accommodation. These words, compromise and accommodation, should not always be seen with disapproval.

Criticism

• Indian Constitution was criticised for being Unwieldy, Unrepresentative and Alien to our condition.
• In the case of India, many such details, practices and statements are included in one single document and this has made that document somewhat large.
• Many countries, for instance, do not have provisions for an election commission or a civil service commission in the document known as the constitution. But in India, many such matters are attended to by the Constitutional document itself
• it is indeed unrepresentative because members of the Constituent Assembly were chosen by a restricted franchise, not by universal suffrage.
• However, if we examine the other dimension, we may not find it altogether lacking in representativeness.
• When Western modernity began to interact with local cultural systems, something like a hybrid culture began to emerge, possibly by creative adaptation, for which a parallel can be found neither in Western modernity nor in indigenous tradition.
• This cluster of newly developed phenomena forged out of Western modern and indigenous traditional cultural systems has the character of a different, alternative modernity.
• Thus, when we were drafting our Constitution, efforts were made to amalgamate Western and traditional Indian values. It was a process of selective adaptation and not borrowing.

Limitations

• The Indian Constitution has a centralised idea of national unity.
• It appears to have glossed over some important issues of gender justice, particularly within the family.
• It is not clear why in a poor developing country, certain basic socio-economic rights were relegated to the section on Directive Principles rather than made an integral feature of our fundamental rights.