INTRODUCTION1

The study of Constitutional law is the study of politics. Politics is about power or relationships of
Power, and power is invested by the people into the State to govern themselves. The most
important aim of the study of Constitutional Law is to make Power more Accountable, State
more Ethical and Governance more Just.

Constitution, Constitutional Law and Constitutionalism

For our understanding we may say:

C1: Constitutional Text

C2: Text and its juridical interpretations – Judicial decisions, constitutional conventions.
C3: theory or ideology underlying these

Constitutionalism:

 Limited government or Limitations on government’s powers,

 Checks and balances of Power,
 Circumscribing the power of the ruling class,
 Against dictatorship.

“Constitutionalism” is the constitutional endeavor that puts limits and checks on the power of the
state.

The theory of constitutionalism is about the relationship between the three Cs- it is about “the
state of play and war between the normative, institutional and social movements/ struggles types
of relationship among the text, interpretation and theory/ ideology.”2

It is important to recognize that C1, C2 and C3 are not always coherently consistent with each
other- there have been conflicts of “war-like nature” between C1 and C2.3

Constitutionalism has two aspects:

1) Foundational aspects of constitutionalism: This refers to the making of the

constitution- the labour of the constituent power and the production of the text of the
Constitution within a context or contexts. Eg: Article 13, part III and the power of
judicial review.

1
These notes are not exhaunstive. They are a sketchy reflection of the class lecture and MUST be supplemented
with class discussions. The parts highlighted in yellow are the essential readings which every student is required to
read.
2
Upendra Baxi, “The justice of human rights in Indian Constitutionalism” in Indian Political Thought (Aakash
Singh and Silika Mohapatra (eds.), 2010).
3
The due process interpretation of article 21; collegium and the appointment of judges to mention the two most
stark, though contrasting examples.
 2) Reiterative aspects of constitutionalism: This refers to the working of the constitution-
i.e. how the interpretations and amendments to the constitution re-defined and re-
constituted the norms of constitutionalism. The evolution of the basic structure doctrine
which has no mention at all in the text of the Constitution is a reiterative aspect of
constitutionalism.
Thus, constitutionalism is an idea that takes different forms which produce different social and
political meanings around the following four areas- governance, rights, development and
justice.

One social meaning that constitutionalism has produced is that secularism forms a part of the
basic structure (S.R. Bommai’s case) but that meaning has not been actualized in the
constitutional history of India as evident in the Ayodhya judgment of Allahabad High Court.

A political meaning that was produced by constitutionalism was the check on the abuse of the
powers vested in the Central government under article 356 (by declaring federalism as the basic
structure of the Constitution in S.R. Bommai’s case).

Formative Ideas of Indian Constitution4

Four important and formative ideas of the Indian Constitution

1. Governance

2. Human & Social Development

3. Pursuit of Rights

4. Pursuit of Justice

Governance: The key to the concept of just governance is representation of the people. This is
because in a democratic republic adequate and proper representation remains the key for
effective governance. Thus, the concept of just governance stems from the Constitutional
promise to universal adult franchise. Article 326 of the Constitution of India guarantees right to
vote as a constitutionally protected right to all the citizens of India.

Human & Social Development: The development of human person as well as social
development of the people requires the state to take positive steps and enhance the capacity of
the people and promote welfare (Welfare State). The cornerstone of human and social
development has been enshrined in the Preamble itself. Further, Part IV – The directive
principles of state policy-- elucidates the preambular promise in a much more elaborate fashion.
Further, after the Forty Second Constitutional Amendment, 1976 the chapter on fundamental
duties (Article 51A) has been added to the Constitution which celebrates a similar theme of
human and social development.
4
Upendra Baxi, The Judiciary as a resource for Indian Democracy, SEMINAR (2010).
The constitution legitimises development only if it benefits the worst-off sections of the society.
Professor Baxi points out and rightly so that “the IC simply insists on the understanding of
development as those plans, processes and policies that disproportionately benefit the worst-off
Indian citizen-peoples.” This understanding of development, on one hand, accords legitimacy to
many activistic decisions of the Supreme Court that have re-defined the Constitution to protect
the rights of the worst-off Indian citizens, and on the other hand, questions the hands-off
approach of the Supreme Court in many cases where the right to development was constructed in
opposition to the very basic human rights of the people. This may be added as an important
principle of interpretation of the Indian Constitution, in addition to the conventional principles of
constitutional interpretation (viz. liberal interpretation, purposive interpretation)5.

Pursuit of Rights: Part III of the Indian Constitution enshrines fundamental rights to freedom.
These fundamental rights are some kind of law free spaces. However, no rights given under the
Constitution of India are absolute. They can be regulated by the government by making a law.
However, the political reason which makes such regulation has to pass the test of constitutional
reason – which is the pursuit of the judiciary to carve out – in order to be validated.

Pursuit of Justice: The pursuit of justice attempt to answer the ‘justness’ of rights given in the
Constitution. The pursuit of justice demands that how to eliminate the stark reality of rights as
merely ‘Masks’ to hide the deplorable and harrowing conditions of the constitutional have-nots
and the worst-off sections of the Indian society. Thus, pursuit of justice may sometimes be to
safeguard rights of the individuals and also sometimes to safeguard individuals from rights!
That’s why the Idea of Justice contains within itself complex and contradictory dimensions.

PREAMBLE TO THE CONSTITUTION

Meaning of Social Justice

 Ideas of Recognition and Redistribution

 the new conception of constitutional morality
 Underlying notions/ philosophies that influence the answers of the Justice questions
(utilitarian- maximum pleasure, Libertarian- fruits of one’s labour, Economic egalitarian-
redistribution)6

5
Refer V.N. Shukla, Constitution of India A-61 - A-65(11th edition, 2008).
6
Amartya Sen, The idea of Justice
Redistribution and Recognition7

It primarily involves transfer of material resources from one group to another.

Justice=========== Equality (Of what is a question which we will discuss later)

 All human beings have equal worth, dignity or value
 Equally entitled to lead meaningful and fulfilling lives

All human beings as a matter of JUSTICE enjoy equal access to the rights, opportunities,
material resources, and basic capabilities needed to live such life.

However, since the Real society is UNEQUAL, such a conception would require privileged
groups to share their resources with the poor and underprivileged. This may be done by
======= Persuasion, Pressure or Coercion (through taxation etc.)
Thus, this idea of redistribution of social resources comes within the Politics of Redistribution.

 Equality involves Redistribution but, Equality = Redistribution is wrong because true

equality/ justice require us to move beyond equitable distribution of resources.

EQUALITY also involves equality of respect, public affirmation of equal human worth or
dignity. This has nothing to do with redistribution.

REDISTRIBUTION can thus fall short of EQUALITY

 Socially and politically marginalised groups may be able to live a decent life in
material terms without feeling equal with the other citizens
 Recognition of Identities of marginalised sections such as gays, lesbians,
indigenous people, cultural & religious minorities.

A contemporary illustration of the debate in constitutional law:

Naz Foundation and Redistributionists
Prof. M.P. Singh emphasizing on the relative importance/ priority of Justice as redistribution
almost gives a secondary place to the issue of homosexuality debate in the following words:
“The homo or same sex sexuality may be adversely impacting and
demeaning the life of many, but many more survival issues of large
masses that demean and dehumanize them are staring at us

7
Bhikhu Parekh, “Redistribution and Recognition: A misguided debate”
 everywhere without searching into the privacy of anybody’s home
or bedroom.”8

The last italicized lines obviously do not mean that law should not enter into bedrooms of
people. Rather, quite the opposite, i.e. at the moment when issues of impoverishment are to be
handled, it is useless to discuss laws of sexuality even though they are intruding into bedrooms
of the people. Why? Because, we need to prioritize the pursuit of redistributive justice. A strange
hierarchy is created between redistributive justice and justice as recognition which becomes
starkly clear as we read more…
“Governments, NGOs, social organizations, lawyers, judges and
many others are engaged and are expected to engage in finding
solutions to the primary issues of life such as food, shelter, health
care, education, livelihood, relocation and dignity. In comparison
to them homosexuality could very well have a low priority”

How do we understand this prioritization of one form of justice over another? Do we need such
confrontation between two notions of justice in order to serve the need of social justice? Is there
a hierarchy of basic needs to be fulfilled first and then only the society should move on to other
forms of injustices?
Such hierarchy has been followed by almost all erstwhile- Marxist thinkers with respect to issues
such as gay rights, racism etc. Such issues of recognition are always seen as desisting people
from the main issue of class struggle and thus seen as counter-productive in the pursuit of social
justice.
Nivedita Menon in her book Recovering Subversion mentions how the move of solidarity by
lesbian group to join the May Day procession was disdained as they word have placards
asserting lesbian rights! The core of the criticism which is leveled against the ‘politics of
recognition’ is that it lies into the hands of the dominant class.
As Professor Bhikhu Parekh observes:
“Though these criticisms are appealing on their face, but a deeper and
fuller understanding of social and political process would belie their
validity. Indeed, we believe that the two forms of politics stress
different and complimentary aspects of equality, and that each
necessarily needs the other to give it depth and energy. As Charles
Taylor put it, the non-recognition or misrecognition of their identity
imprisons people into a reduced mode of being and gives rise to deep
unhappiness and the sense of powerlessness. Oppression and
inequality can take many forms, the economic being only one of
them. The politics of redistribution focuses on some of these, that
of recognition on others.”

8
M.P. Singh, “Decriminalisation of Homosexuality and the Constitution”, 2 NUJS L. Rev. (2009). (For his
redistributionist arguments read page 361-363).
Prof. Bhikhu Parekh makes the similar point much more poignantly:
“Since the good society must aim at both redistributive justice and
conditions conducive to diversity, the politics of redistribution and
recognition are equally important and need to be integrated into a coherent
theory of politics. Both are concerned with freedom and equality, differing
largely in the aspects they concentrate on. When analyzing a state, the
politics of redistribution inquires into its class character and the ways in
which this is obscured and reproduced. By contrast, the politics of
recognition inquires into its cultural character, the identities it
institutionalizes, the groups it excludes or marginalizes, and the subtle ways
in which all this is veiled and perpetuated. Far from being in conflict, the
two forms of politics offer complementary insights into the structure of
social and political life and its mechanisms of exclusion and
marginalization.”

Thus, Bhiku Parekh provides a meaningful blend of the notions of politics of recognition and
politics of redistribution.

Secular, Socialist (42nd Amendment Act)

 Socialism as basic structure of Constitution???

Equality of Status and Opportunity

IC articulates the concept of equality before law as equal opportunity of access as well as result
for all. This happens in the following three ways:
a) System of reservations that prescribes for numerical quotas for access to education
and state employment, not just for the SC and STs but also for socially and
educationally backward classes and ‘other backward classes’.
b) Idea of constitutional secularism which provides all citizens with an equal right to
freedom of religious belief and practice but restricts this right with respect to the
Hindu tradition. ‘Untouchability’ is declared as violative of the right to equality of all
citizens and for the first time in the history of world constitutions, enacts
constitutional criminal law (article 17).9
c) Extension of reservations of SC/ST to the representation principle. The constitutional
right to adult suffrage was qualifies as regards the right to contest (article 330, 331). It
was envisaged as a temporary measure (only for 10 years in article 334).

Dignity of Individual and the Unity and Integrity of the Nation

9
Article 23 and 24 also create constitutional crimes. The three articles together, asserts Professor Baxi, are said to
constitute “the bleeding heart of Indian Constitutionalsim”.
  Can they be competing goals?
 Constitution of Peace vs. Constitution of War

Part XXII Short Title, Commencement, Authoritative Hindi Text and Repeals

 Abolition of Privy Council Jurisdiction Act, 1949 ended the right to appeal to the Privy
Council. Earlier the appeals from the Federal Court of India (established in 1937 under
GOI Act, 1935) went to the Privy Council. But with the establishment of Supreme Court
in 1950, PC ceased to be the final appellate authority.

CONSCIENCE OF THE CONSTITUTION: PART III AND PART IV

 To attain the goal of “social revolution”10

 Dichotomy between Civil and Political Rights and Socio-Economic Rights- Western
liberal tradition
 Questions of Enforceability and Justiciability: Comparison with the Irish Constitution
Article 45 of Irish Constitution reads in relevant parts thus: “The principles of social
policy set forth in this article are intended for the general guidance of the Oireachtas. The
application of those principles in the making of laws shall be the case of the Oireachtas
exclusively, and shall not be cognizable in any Court under any of the provisions of this
Constitution”.
 Jurisprudence of Article 37- “cognizability v. enforceabilty”, “shall be the duty of the
state”, “fundamental in the governance”
 Part IV: Socialistic Principles/ Socio-Economic Rights; Gandhian Principles, Matters of
Governance, Ecology and National Heritage….“veritable dustbin of sentiment”!!!??

CONSTITUTIONAL STATUS OF PART IV

 Opinion of H.M. Seervai11: “in our Constitution but not a part of it” (page 1923-1924)
 P.K. Tripathi12- it shall be unconstitutional and illegal on the part of the law making
organ of the state to ignore DPSP (page 295)
 T. Devidas13- “though the duty (of state in article 37) is made not compellable, a
departure from the duty can be prevented.”
 Joseph Minattur14: Unenforceability does not preclude recourse to a court for Declaratory
Judgment
 Trend of reading DPSPs into FRs (to be discussed later with article 21)

10
Glanville Austin, The Indian Constitution: Cornerstone of a Nation (2007). Read pages xvii-xix and 26-49.
11
H.M. Seervai, II Constitutional Law of India (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2005.
12
P.K. Tripathi, Spotlights on Constitutional Interpretation (N.M. Tripathi Publications, Bombay, 1972).
13
T. Devidas, “Directive Principles: Sentiment or Sense?”,17 JILI 497 (1975).
14
Joseph Minattur, “Directive Principles: A step towards their implementation”, 11(3) Law Quarterly 162 (1974).