By Vivekananda Pattanayak in Bhubaneswar, November 30, 2023: As the country celebrated the constitution day recently, with the passage of more than three quarter of a century since the independence of India one would like to reflect how the system has weathered the vicissitudes of time.

Certainly, the world is not the same when the people of India solemnly resolved to constitute a sovereign democratic republic now described as sovereign socialist secular democratic republic, and affirming in its preamble justice, liberty, equality, fraternity and assuring the dignity of the individual and the unity and integrity of the nation. The constitution has been recognized as a living document not expected
to be frozen in time.

Amendments and interpretations give life to the constitution known as the basic and fundamental law. The doctrine of basic structure enunciated by the Apex Court has given inviolability to certain features and institutions. When the document was debated in the Constituent Assembly, the principles and philosophies enshrined in the models of USA and UK influenced the Indian constitutional system.

Features like fundamental rights, separation of power, independence of judiciary, federalism, decentralization of power, accountability of the executive to the legislature, high constitutional status of institutions like the CAG, the Election Commission and Public Service Commission, and the independence of civil service became the bedrock of the basic law.

Right to freedom of speech and expression contained in Article 19(1) (a) read with Article 361A giving protection of publications of the proceedings of Parliament and State legislature in a newspaper and giving reference to newspapers including news agencies subsequently supported by judicial interpretations are the basis of freedom and independence of media.

The special feature of this historic document was the Directive Principles of the State Policy which unlike fundamental rights were not enforceable but remained fundamental to governance of the country vesting duty on the State to make laws on these principles.

Inclusion of fundamental duties imposed obligations on citizens with reference to development of scientific temper, protection of the natural environment and promotion of common brotherhood and dignity of women constitute unique features of the constitution.

The question of sovereignty and where it lies continue to be debated in different fora for the last three quarter of the century. In the parlance of political science, the word sovereign conveys the meaning of supreme power which distinguishes the state, as a legal and political institution different from other institutions of society like an ecclesiastical body, an association of artists, organization of sports, institutions representing lawyers or teachers, trade unions etc.

Sovereign also conveys the meaning that the state as a political entity is free from jurisdiction of another state. Before India became independent it was not a state in legal and political sense as the entity was surrogate to the British crown and supreme power a fundamental attribute of state was outside India.

Theory of sovereignty emanates from the Treaty of Westphalia in 1648 at the end of a long religious war in Europe to decide the jurisdiction of the State and the Church.

Who exercises that supreme authority under the constitution is often discussed. Some say it lies with people of India since the Preamble starts with the words “we the people”. The word people are too amorphous, and it is not specific. People while casting vote in the general election for the parliament have different objectives from the people when they vote for the state election or election of local bodies. They do not decide on the future of the constitution which is the supreme law of the land.

In the elections representatives are elected to the legislatures to whom the council of ministers is collectively responsible. Legislatures make laws which are subject to the constitution. In the epoch making the Golaknath case the Apex court had taken the view that the constitution can be amended by convoking the Constituent Assembly.

In India there is no system of referendum, plebiscite or initiative as seen under the Swiss constitution to ascertain the will of people on specific matters giving finality on issue. Even in Britain, which has a flexible constitution, being unwritten, referendums are used to determine the views of citizens. Highly contentious BREXIT was decided by way of referendum. In France, there is a regular system of referendums on debatable and controversial issues.

In India a view is taken that the body which can amend the Constitution can be treated as a repository of sovereign authority. The procedure to amend the constitution envisages that certain parts of the constitution can be amended by Parliament if it can have a specified majority. In respect of certain other parts of the constitution the ratification of the legislatures of half of the States is needed.

In addition, after the doctrine of basic structure has been adumbrated the Supreme Court can hold that amendment of constitution is violative of the basic structure and hence it is ultra vires. From the above analysis one would see that no institution by itself can amend the constitution unilaterally. Only when there is unity of thought among the multiple institutions, the Parliament, legislatures of half of the States and the Supreme Court, amendment to the constitution can take place. In other words, sovereignty does not lie in any single institution.

Over the last seven decades, the constitution has been amended. In earlier years even fundamental rights were amended to accommodate some measures like abolition of zamindari system and reservations in employment since the doctrine of basic structure had not been propounded.

Only after the Golakhnath case, specifically after Kesavananda Bharati case and Minerva Mills case amending power to the constitution got constrained with the evolution of the doctrine of basic structure. This put a restraint on the amendment process making it subject to judicial review.

The right to property is no longer a fundamental right as was the case earlier although it is a constitutional right.

Although Article 40 under the Directive Principles enjoined upon the State to organize village panchayats, it was only after the seventy third amendment in 1992 the constitutional status to three tier system at the district, intermediary and village level was given along with the urban municipal bodies.

Notwithstanding this historic amendment the legitimate question arises to what extent legal, financial, and executive power have been vested in these institutions to make them fully autonomous so that they can function as decentralized governments.

With robust spread of education, growing consciousness among people due to wide circulation of newspapers, magazines, radio, television, mobile telephone and internet, people’s knowledge has grown much more than what it was when India became independent. Wisdom is not the monopoly of New Delhi or Bhubaneswar or even Baripada. It is even in remote villages in Similipal, Juangpir or Bonda Hills. Therefore, making Palli or Grama Panchayat or Panchayat Samity or Zilla self-governing will go a long way in realization of the vision of Purna Swaraj of Mahatma Gandhi.

The federal structure of the constitution is overshadowed by the emergency provisions like Article 356. In recent times indefinite withholding of bills by Governors has received adverse views of the Apex Court. Furthermore, appointments to the high constitutional positions and statutory bodies need review to make them more
transparent and open based on a collegial approach.

The neutrality of civil service is the essential requirement of a democracy, a tradition grown over decades as elections can bring political parties championing different ideologies. Upholding of the constitution and legal system is the sacred duty of the civil service not withstanding shifting majorities in the system.

Under Article 51 of the Constitution, the State shall endeavor to promote international peace and security, maintain just and honorable relations between nations, foster respect for international law and treaty obligations in dealings of organized peoples with one another and encourage settlement of international disputes by arbitration.

The word State in the context of Article 36 and Article 12 in the background of Article 51 would refer to the Government of India and the Parliament. Pursuant to the Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, 1966 was adopted. India acceded to the International Convention with certain declarations in 1979.

The Protection of Human Rights Act, 1993 was enacted giving reference to the International Covenant on Civil and Political Rights. Although the constitution under Fundamental Rights had incorporated the right to equality, right to freedom, right to personal liberties, cultural and religious rights, and right to constitutional remedies, it took further action to give effect to international law on human rights.

India is a member of the United Nations. Thus, it is subject to the Charter of the United Nations. Similarly, it is also a member of several Specialized Agencies of the United Nations. Thus, India is subject to the legal instruments constituting those agencies and regulations prescribed by these agencies.

Treaty whether bilateral or multilateral is subject to the Vienna Convention of Laws of Treaties. Acceding to a treaty is undoubtedly a sovereign act. A state signing a treaty while exercising its sovereignty also agrees to limit its supreme power to remain compliant with the treaty.

Growing concern about the environment, global warming and climate change will inevitably bring more and more international regulations limiting autonomy of nation states. The vigilant intelligentsia of the nation must prepare the institutions under the constitution to adjust to the changing realities.