Other Concepts in the Indian Constitution

Social Justice and Welfare

The Constitution includes Directive Principles of State Policy, which, while not enforceable by courts, lay down the state's goals of establishing a welfare state and promoting social and economic justice. These principles aim for equitable distribution of resources and prevention of wealth concentration. These principles were inspired by the constitution of Ireland.

Separation of Powers

Montesquieu (1689 – 1755) was a French judge, man of letters, historian, and political Philosopher. He is the principal source of the theory of separation of powers, which is implemented in many constitutions throughout the world. His anonymously published The Spirit of Law (1748), which was received well in both Great Britain and the American colonies, influenced the Founding Fathers of the United States in drafting the U.S. Constitution.

Montesquieu believed that if these powers were combined, one branch could enact and enforce tyrannical laws. He also believed that the separation of powers was essential to protect liberty. The judiciary has the power to review and invalidate laws that violate the Constitution, acting as a check on legislative power.

Inspired by Montesquieu's concept of the separation of powers, the Constitution divides governmental authority among the legislature, executive, and judiciary. This separation is intended to prevent the concentration of power and ensure checks and balances. Montesquieu's theory of separation of powers is the idea that the government's responsibilities should be divided into three branches to prevent any one branch from becoming too powerful. This division of powers is intended to create a system of checks and balances.

Rule of Law

The Constitution enshrines the principle of the rule of law, which means that everyone, including the government, is subject to and accountable under the law. This is a cornerstone of many modern constitutions, particularly those in common law systems such as the United Kingdom and the United States.

Constitutional Morality

B.R. Ambedkar stressed the need for "constitutional morality," which he defined as a "perfect confidence...that the forms of the Constitution will not be less sacred in the eyes of his opponents than in his own.". This idea emphasises the importance of upholding constitutional principles even amidst political disagreements. This is a concept related to the spirit of the constitutions of many nations.

Federal System

The Indian Constitution establishes a federal system, dividing powers between the central government and state governments. This is similar to the structure of the US Constitution and other federal systems.

Parliamentary System

While the Indian Constitution draws inspiration from the US Constitution in many respects, it also draws on the British parliamentary system in the establishment of its legislative and executive branches, which include a Prime Minister and Cabinet responsible to a directly elected lower house.

Social Reform Movements

The Constitution draws inspiration from Indian social reform movements, such as those led by Raja Ram Mohan Roy, Jyotirao Phule, and Periyar, which challenged caste hierarchies and advocated for gender equality and social justice.

Judicial Review

The Indian Parliament has the power to make laws for the country and amend the Constitution. However, the power of judicial review allows the Supreme Court to strike down laws and amendments that violate the basic structure of the Constitution. This ensures the Constitution's supremacy and the balance of power between different branches of the government. The amendment attempted to limit the power of judicial review over constitutional amendments, although this aspect was later struck down by the Supreme Court in the Kesavananda Bharati case (1973).

The power of the judiciary to review and invalidate laws that violate the constitution, acting as a check on legislative power, is similar to the system established in the US Constitution. The framers intended for the Constitution to be adaptable to changing circumstances, granting Parliament the power to amend it. However, the concept of "basic structure," established through judicial interpretation, limits Parliament's amending power to protect the Constitution's fundamental features (Which is not specified anywhere in the constitution, and it is a dogma that basic structure must be protected).

The Supreme Court has identified core principles, such as secularism, democracy, and the rule of law, as part of the basic structure, which cannot be altered. In 1973, the Supreme Court created the basic structure doctrine to protect the core of the Constitution. The notion of a 'basic structure' which limits the power of the parliament to amend the constitution is a judicial overreach.

The Supreme Court of India on 25 November 2024 dismissed three petitions seeking the removal of the words 'secular' and 'socialist' from the preamble of the Indian Constitution. The petitioners, including BJP leader Subramanian Swamy, advocate Ashwini Upadhyay, and Balram Singh, had challenged the 42nd Amendment, arguing that the inclusion of 'secular' and 'socialist' in the preamble was unnecessary and inconsistent with the original intent of the Constitution.

The Court clarified that the Constitution’s amending power under Article 368, which allows Parliament to make changes to the Constitution, also extends to the preamble, and the adoption date of the Constitution cannot curtail this power. The Supreme Court had previously upheld the 42nd Amendment and reiterated that secularism is a core principle of the Constitution. The Court also noted that the terms 'socialist' and 'secular' should be understood in the Indian context and that the government's policies on these principles are open to interpretation. In its observations, the Court acknowledged that these concepts need not be viewed through a Western lens and are subject to evolving policy decisions in India. The Supreme Court of India on Monday (25 November) dismissed three petitions seeking the removal of the words 'secular' and 'socialist' from the preamble of the Indian Constitution.

Power Leakage

The structure of governance in India reveals a significant power leakage when prime ministers sign international treaties without parliamentary approval, as the Constitution grants the executive this authority under Article 73, bypassing the legislative oversight that ensures democratic accountability. This practice undermines the checks and balances critical to a parliamentary democracy, concentrating power in the executive and potentially compromising national interests.

Many such instances can be observed such as Panchsheel Agreement which was signed in 1954, between India and China. This agreement outlined the five principles of peaceful coexistence. It proved ineffective in preventing the Chinese aggression of 1962. The Indus Water Treaty was signed in 1960, with Pakistan retaining 80% water share for Pakistan. The Tashkent Agreement was signed in 1966, after the 1965 Indo-Pakistani War, but it did not address Kashmir. The Katchatheevu Agreement was signed in 1974 when India relinquished claims to the island, previously part of the Ramnad Kingdom, affecting fishing rights for Tamil Nadu fishermen.

Prime Minister Indira Gandhi signed the Agreement in 1972 with Pakistan for the repatriation of prisoners of war following the 1971 war, despite the victory India had secured through immense national effort. Pakistan’s Prime Minister Zulfiqar Ali Bhutto’s plea for their release led to India conceding this hard-won leverage, a decision critics argue was akin to giving away the nation’s efforts as alms, prioritising diplomatic goodwill over strategic advantage. Such unilateral actions highlight the risks of executive overreach, where the absence of parliamentary scrutiny can lead to decisions that may not fully reflect the nation’s collective will or long-term interests. India leased the Coco Islands to Myanmar in 1988, which has now emerged as a strategic threat.

Contradictions in the Constitution of India

Certain provisions within the Constitution appear to contradict the ideals of the Constitution or create logical inconsistencies between articles. For instance, caste-based reservations challenge the notion of equality, while minority-specific rights seem at odds with secularism. Additionally, some articles appear to logically oppose each other, raising questions about the Constitution’s internal coherence.

Articles Against the Preamble of the Constitution

The Preamble outlines India’s foundational values, yet certain articles appear to deviate from these ideals. Below is a list of such provisions, along with an explanation of their apparent contradictions and the reasoning behind their inclusion.

Equality vs. Caste-Based Reservations. Preamble’s promise of “Equality of status and of opportunity” for all citizens. Article 15(4) permits the state to make special provisions for the advancement of socially and educationally backward classes, Scheduled Castes (SCs), and Scheduled Tribes (STs). Article 16(4) allows reservations in public employment for the backward classes. Article 330 & 332 provide for the reservation of seats for SCs and STs in the Lok Sabha and state legislative assemblies. These provisions grant preferential treatment based on caste, seemingly undermining the Preamble’s promise of equality by favouring certain groups over others.

The Supreme Court, in Indra Sawhney v. Union of India (1992), upheld this approach, ruling that reservations are a means to achieve equality, not a violation of it. Thus, these articles align with the Preamble’s broader goal of justice and equality through affirmative action. However, the constitution needs to be interpreted by the people empowered to amend the constitution, and that interpretation must be provided to the Supreme Court. The kind of utopia the Supreme Court is trying to reach is not only unreal and illogical but also unprecedented throughout the world.

Secularism vs Minority-Specific Rights. Preamble’s promise of India as a “Secular” state, implying neutrality and equal treatment of all religions. Article 25 guarantees freedom of religion, subject to public order, morality, and health. Article 30 grants religious and linguistic minorities the right to establish and administer educational institutions. By providing minorities with special rights, such as managing their institutions, these articles appear to favour certain religious groups, contradicting secularism’s principle of impartiality.

The reasoning given is that Indian secularism differs from the Western model of strict separation; it embraces ‘sarva dharma sambhava’ (equal respect for all religions). This definition of secularism doesn’t have any source and is unprecedented and illogical. All religigions are not equal because they differ in their metaphysical contents and the religions of foreign origin also have political aspiration. Article 30 protects minorities’ cultural and educational autonomy giving them a secure access to alter the Indian thought process. No one ever asked for it, it is self harm. The concept of minority is prejudiced in a democracy and has been discussed in detail.

3. Liberty vs. Preventive Detention. Preamble’s promise of “Liberty of thought, expression, belief, faith, and worship.”

Article 22 permits preventive detention with safeguards, allowing the state to detain individuals without trial to prevent future offenses. Preventive detention restricts personal liberty, appearing to clash with the Preamble’s assurance of individual freedom. There is no need to write such unattainaible lofty ideals in the Preamble if they are not feasible to maintained.

5. Socialism vs. Right to Property. Preamble’s promise of India as a “Socialist” state, implying economic equity and reduced wealth concentration. Article 300A (post-44th Amendment, 1978) protects property as a legal right, replacing its earlier status as a fundamental right under Article 31. The shift from Article 31 to Article 300A facilitated land reforms and public welfare schemes, aligning with socialist goals. The state retains the power of eminent domain, ensuring property rights do not obstruct economic justice. This adjustment reflects a pragmatic socialism tailored to India’s mixed economy, harmonising with the Preamble.

Articles Logically Contradicting Each Other

Beyond Preamble-related tensions, some articles appear to logically oppose one another. Below is a list of such contradictions, with explanations of their opposing nature and the reasoning behind their coexistence.

Article 14 vs. Article 15(3). Article 14 guarantees equality before the law and equal protection under the law. Article 15(3): Permits special provisions for women and children. Article 15(3) is an exception carved out to address gender and age-based vulnerabilities, rooted in historical disadvantages. The Supreme Court has interpreted this as a facet of equality, not a violation, ensuring substantive justice. The contradiction is resolved by viewing equality as context-specific rather than absolute. The same could have been achieved if a proper philosophy of equity had been used in Article 14.

Article 368 vs. Basic Structure Doctrine. Article 368 grants Parliament unfettered power to amend the Constitution. Whereas the Basic Structure Doctrine established in Kesavananda Bharati v. State of Kerala (1973), it limits amendments that alter core features (e.g., democracy, secularism). Article 368 suggests limitless amendment power, while the doctrine imposes judicially created boundaries. The basic structure doctrine is incorrect because the Judiciary cannot limit the Parliament. However, if the parliament is required to be limited, then any changes in the basic structure of the constitution should require a special referendum.

Article 32 vs. Article 226. Article 32 provides the right to approach the Supreme Court for fundamental rights enforcement. Article 226 grants High Courts broader powers to issue writs, including for non-fundamental rights. Overlapping jurisdictions create redundancy, with Article 226 appearing to dilute Article 32’s exclusivity as a fundamental rights remedy. This overlap undermines the enforcement of the rights through a multi-tiered judicial system and overburdens the Supreme Court.

Logical Inconsistencies Between Constitutional Articles. Fundamental Rights (FRs) are justiciable (e.g., Article 14, 19, 21), whereas DPSPs (Directive Principles of State Policy) are non-justiciable (e.g., Article 44—Uniform Civil Code). FRs protect individual rights, while DPSPs promote collective welfare. In Minerva Mills (1980), the SC ruled that FRs and DPSPs must be harmonised, but conflicts persist.

Reasons for Contradictions

The Constituent Assembly balanced diverse interests (e.g., reservations for social justice) rather than focusing on logical principles. They focused on the spirit rather than the reason. The courts have often reconciled contradictions (e.g., Basic Structure Doctrine). This is a self-assumed role of the judiciary to be a guardian of the constitution and to interpret the consitiution. This aspect needs to be addressed by the Parliament.

It is not only the time to re-examine Minority Rights vs. Uniform Secularism, clarify the reasonable restrictions on Free Speech and reconcile DPSPs with FRs via Legislative Action but tot re-examine the philosophy of our consititution.

PART THREE

Plato's Republic