The Odyssey of Constitution

‘If all men are angels, there is no need for constitution as the angels don’t need it, but if all men are devils then no constitution will work. As men are both angel and devil constitutions are needed to contain the voices and promote virtue.’

- James Madison

Introduction about the course
The course on Constitutional law and philosophy shall aim at not answering the text-book questions but to leave the participants with some thoughts to be reflected upon, some questions to be discussed and some stories to be reflected upon. It shall include a slightly different approach than what is adopted by the academic cafeterias; the students must not just have an experience but also shouldn’t miss the meaning.

Some say that the Constitution is a clear breakthrough from the past as through this instrument the identity of the Republic of India was born. While another narrative is in favor of a sense of continuity while quoting provisions of ‘Law in force’ in inscribed in Articles 13 as well as 372. But what is the ultimate truth? The truth is hidden in narratives. Each narrative is truth for those who adhere to that version. A parallel can be drawn with the concept of ‘Vyavaharik satya’ [1]of the Indian Philosophy. Stories play a big role in the legal process. Plaintiff and defendant in a trial each tell a story, which is actually a translation of their "real" story into the narrative and rhetorical forms authorized by law, and the jury chooses the story that it likes better.[2]

Law lives on narratives/stories: Clients tells a story to the lawyer; the story of what they perceived out of an incident. The lawyer figures out what to hear and what to process. (2nd story). This story gets transformed into plights and prospects (3rd story) and gets converted into pleas, prayers and testimonies to be presented before a judge or jury (4th story). The jury discusses it amongst themselves (5th story) and come up with a judgement (6th story). This verdict is another narrative which acts as a fodder to another class of story-tellers called journalists and legal commentators. This endless telling and re-telling, moulding and re-moulding goes on. Each is a narrative, each true but this is a transactional truth.

This could be understood by another story which Sri Ramakrishna used to narrate: “There was a procession in a village in India, and all the people turned out to see the procession, and specially the gaily caparisoned elephant. The people were delighted, and as the five blind men could not see, they determined to touch the elephant that they might acquaint themselves with its form. They were given the privilege, and after the procession had passed, they returned home together with the people, and they began to talk about the elephant. 'It was just like a wall,' said one. 'No it wasn't,' said another, 'it was like a piece of rope.' 'You are mistaken,' said a third, 'I felt him and it was just like a serpent.' The discussion grew excited and the fourth declared the elephant was like a pillow. The argument soon broke into more angry expressions and the five blind men took to fighting. Along came a man with two eyes, and he says, 'My friends, what is the matter?' The disputation was explained, whereupon the new comer said, 'Men, you are all right: the trouble is you touched the elephant at different points. The wall was the side, the rope was the tail, the serpent was the trunk and the toes were the pillow. Stop your quarreling; you are all right, only you have been viewing the elephant from different standpoints”

In the same manner, truth is also perceived from different angles. Even lustitia, the lady justice, is also blindfolded. So what is the non-transactional ultimate truth? A way to understand this truth is to cure the blindness. But since all are subject to certain conditioning, the chances of gullibility along a view can’t be ruled out. Hence, harmoniously reading of all the observations of the blind-men, reading all the narratives through the lenses of its story-teller may be one way to reach near the ultimate truth. We shall try to understand the different perspectives and narrations that led to the moulding of the Constitution and also those which facilitates its evolution each moment. This path may lead us from Vyavaharik satya to Pratibhasika Satya to Paramarthika Satya [3](from transactional truth to ultimate truth, although reaching this truth may sound utopian at this stage). There are institutional narratives, individual narratives and those narratives which mould the society. We shall make an attempt to de-construct these narratives and even the narratives of less-dominant while understanding the constitutionalism in India.

[1] Translated as Transactional Reality. Vyavaharika is the relative plane of reality. This is the realm of space, time, cause-effect and human intellect works here.

Everything that exists in this level of reality depends on each other and we cannot say what their 'essence' is. The things in 'vyavaharika' world can be said to exist by itself from the relative point of view.

Eg. Like the 'pot' exists but once you realise or are introduced to the truth/fact about 'clay', you find no object called pot exists and it's just an appearance of clay {a name('naam), form('rupa'), utility('vyavahara’)

[2] Law's Stories: Narrative and Rhetoric in the Law. Peter Brooks and Paul Gewirtz, eds. Yale University Press, 1996. Pp v, 290.

[3] Ultimate level of truth. It can exist by itself without depending on anything. This is spiritual in experience and subject – object duality, cause-effect formula, space, time etc is not here. The Upanishads states that the nature of the Ultimate Reality, 'paramartha satya', can be expressed only by the word ‘Neti, Neti’ (Not this, not this). This is an attempt to define something by rejecting all other possibilities on what it can be. Since the ultimate should be beyond human intellect, we can speak about it only by negation statements.

- Assemblage of certain principles whereby a political body or system is constituted and governed.

- It is a Mechanism for making law

- Constitution doesn’t tell what the law is, but what shall be the character of the law.

Constitutional law Law that governs the state rather than the law whereby the state governs.

- Grundnorm theory

Constitution is a grundnorm.
Norms – Basis measures, scale, benchmark.

Just like the rules made by executive must be in consensus with the law (parent statue) otherwise it is ultra-virus.

If any law is not within constitutional norm/grunt norm/basic norm, it is unconstitutional and cannot survive. Constitution is the special build of norms.

Prof. Rowald: Constitution is not a finished product, it is a process of evolution.{An Indian mind would have said, it’s a process of Involution: where the evolution comes from churning within} It is a continuous dialogue of political system with generations to come.

So what was this dialogue and how did this constitution evolve on this soil of ours?

Dr. Chandrachud D.Y, J. says Constitution is a transformative instrument. But it is carrying not merely an element of transformation, but the author would like to supplement the statement and transform it into : "Constitution is a transformative instrument carrying the legacy of the resplendent past."

Without reading the diary of Bhim Rao Ambedkar, notes of B.N Rao, talks of K.M. Munshi, watching through the specs of Mohandas Gandhi this understanding is not possible. Interacting with all these personalities along with likes of Bose, Tilak, Gokhale, Hedgewar, Savarkar, Naroji, Shyamji, Vivekananda, A.O. Hume, Mangal Pandey, Zafar, Macaulay, Bentick, Burke, Hastings and Clive the understanding of the evolution of the modern constitution shall remain incomplete.

To understand the growth and operation of Constitution, we have to adopt an indigenous approach, through the lenses of Bharata. As K.M Munshi explained this coinage Bharata as Bha’- light + ‘Rath’ – engaged i.e it is a community of people who are treading towards light or are ever-engaged in contemplating the light/truth. It can also be put as an attempt to understand a veritable chaos that defies any attempt to logically understand it. A jurist would say that it is a functioning chaos. The dynamics of law and particularly constitutionalism in Bharata has not been a manicured garden, it is a forest. The complexity here is a nurturing factor. It survives, grows on its own. It doesn’t need a gardener or fertilizers[1]. It is like phoenix which shall rise from its own ashes. People who think in a structured manner cannot understand the possibility of the chaos. One who is the product of a manicured garden would think the forest is chaotic. A garden needs constant tending. If you do not tend to it for a few months, it’s gone. But a forest has been there for millions of years, and it will continue to be there.[2] The growth of law in the modern era needs to be looked in order to appreciate the present Constitution in a better light. The journey from Colonialism to Imperialism to return of Indic discourse/ teleology.

[1] Sadhguru, Bha-ra-ta; The rhythm of a nation (Isha Foundation, 2016, Coimbatore)

[2] Ibid

MOVING TOWARDS COLONIALISM

In 1600, a charter was issued in favour of the East India Company by the British Parliament, granting them an exclusive trade right for a period of 15 years. It was not a territorial charter, in other words, there was no intend shown to acquire the territory of India, The charter granted rule making powers to the company according to the English law system. The seed of the English narrative was sown. In 1612, British East India Company established their first factory at Surat. It was in 1623 that the authority to exercise the criminal justice that was given to the company by the king’s commission. The administration of the criminal justice has always been a prerogative of the sovereign but it was the case where a foreign entity was getting this right be it only for their factory. The President and the council of the Factory didn’t accept the dual system of law. i.e. Mughal and British. They requested the Mughal representative and got a ‘Farman’ to administer their own English law. Most of the Englishmen, i.e President and the council members of the factory were from a humble background with poor education and very elementary understanding of law, therefore they exercised law according to their own sense of right and wrong.

In the case involving Indians and English, a local tribunal in Surat under a Mughal official was to decide the case, but there was a rampant corruption and Mughal officials were open to bribes and hence English took the laws in their own hands by bribing the judge and extracting the decisions in their favour.

Taking a leap of a century and quarter, after the battles of Plassey and Buxar in 1757 and 1764 respectively, the administration over a considerable part of India was with the Company. After Plassey in 1957, the EIC was granted the Diwani rights i.e. right to collect land revenue, of Bihar, Bengal and Odisha. India was a colony for the English and accordingly received a colonial treatment. From the middle of the 18th century, the company expanded its territories in India outside the Presidency towns. The new areas came to be known as Muffazils i.e. the areas adjacent to presidency towns. The ‘Adalat system’ came into being for the administration of justice in the muffazil areas in Bihar, Bengal and Odisha excluding the presidency town of Calcutta in 1772. With the Judicial plan of 1772, following courts came into being: Muffazil Diwani Adalat (to try civil cases), Muffazil Faujdari/Nizamat Adalat (to try all criminal cases. This Adalat was constituted by Muslim law officers), Small Cause court (to decide petty issues upto Rs. 10), Sadar Diwani Adalat (Court of appeal from Muffazil Diwani Adalat) and Sadar Nizamat Adalat (Court of appeal from Muffazil Nizamat Adalat headed by an Indian officer called Daroga-e-Adalat. This court had to confirm the death sentence passed by the Muffazil Nizamat Adalat: a similar power which HC of modern age exercises under Sections 366-368 of Cr.PC.)

While in this colonial period of company raj, the company’s servants were getting richer, the company itself was facing financial difficulties. The British Parliament was requested by the EIC to give a huge loan of 1 million pound in 1772. The Parliament which controlled the finances under the Bills of Rights of 1689, decided to scrutinize the running of the company in India. It constituted a secret committee to look into the constitution and administration of the company’s administration in India. The company was appointed by the House of Commons and in its report the committee strongly condemned the EIC observing the deficiency and rampant corruption in the system and concluded that the independence of the EIC must be overtaken by the Parliament. The British Parliament consequently decided to enact the Regulating Act of 1773 to re-organize the administration and judicial system in India. It was the first Act of the British Parliament to be enacted for India after the system of proclamation of Royal Charters. It was a phase of Parliamentary interference in the affairs of India.

A charter was issued by King George IV on 26th March 1774 to implement the provisions of the Regulating Act. A Supreme Court was established in Calcutta at Fort Williams with 4 judges including the Chief Judge Sir Elijah Impey. The jurisdiction of the SC being over: British subjects, Subjects of His Majesty in Bihar, Bengal and Odisha and persons employed under them.

INJECTION OF IMPERIALISM

The Mismanagement of the finances and in-efficient judicial system by EIC led to a strong anti-company public opinion in England. Warren Hastings, the first Governor General in India (1772085) was tried for ‘High crimes and misdemeanours’ in the House of Lords in 1788. While Warren Hastings defended his actions in India in the language of colonial discourse of power, it was the prosecutorial speeches of Edmund Burke (otherwise a legislator in House of Commons) representing the case of people in India that the imperial discourse of justice under natural law was constructed as a possible basis for British rule in India.[1] The discourse contained within it a sense of superiority complex which the ‘west’ had possessed and believed it to be a white-man’s burden to civilize the east. In the next century and half of the English Raj. It was in the persona of the plaintiff [Edmund Burke] for imperial justice that India remained turned to the British Empire as the ultimate judge, until there came an absurd end to this discourse of justice by the second decade of the twentieth century.

The Supreme Court of 1774, then 3 Chartered courts in Bengal, Bombay and Madras and later the High courts with Federal Court and the Privy Council were theatres to justice; a place where colonial powers were subjected to answer Imperial justice in the language of law.

In 1858, with the transfer of power from the EIC to the British Crown, the British Monarch was seen as the figure who stood above the identity of England as a nation as a way to mask the foreign origin of colonial state. [2] What is remarkable about the imperial deployment of category of justice and liberty is that while these categories were the basis of struggle for emancipation from both absolutist monarchies and foreign rule in the west, in India they became the foundation of the foreign rule under a monarchy which was also foreign; they were made to serve a purpose exactly the opposite of their meaning.

SENSE OF INDIC REVIVAL

From its inception in the mid 1880’s for about a quarter of a century, A.O. Hume founded Congress’s discourse of liberty was anchored in the figure of the monarch and not in the sovereignty of people; it was as the subjects of the British Empire that the Congress hoped that the Indian shall be free and not as the citizens of India. For pre- Gandhian Congress, freedom was a privilege and not a right. Mushrooming of the revivalism had started much earlier: a young Hindu monk Swami Vivekananda from India had already shook the world platform from Chicago in 1893 after which the New York Herald wrote “After hearing him, we feel foolish to send missionaries to this learned nation”. The movements after Banga-Bhanga: the Vande Mataram Movement, the establishment of Hindustan Republican Association in the leadership of Chandrashekhar Azad, Bhagat Singh, Sukhdev Thapar were some movements which were working on the Indic revivalism. It was the Non Co-operation movement of 1920 that brought the whole nation under this umbrella of Indic Revivalism. The movement was widely criticized too and for the reasons which ultimately led to the partition of India. The movement was rolled as Non Co-operation-Khilafat Movement. Khilafat movement was a movement of to re-establish Khalifa (Caliphate): the religious and political head of Islam who was overthrown after 1st World war. This attempt to include khilafat movement within the ambit of NCP tapped the identity of a large population in the name of their religion. They were made to come forward not because they wanted home-rule in India but because they belonged to a particular religion and once this religious identity was tapped, fertilizer to the seed of Pakistan was sprinkled. The other movements and organizations were now born on the lines of Indic revivalism including Hindu Mahasabha and Rashtriye Swayamsevak Sangh in order to take this movement in a rooted manner.

Gandhi, although brought a breakthrough in the development of discourse was widely criticized for this act but apart from this Gandhi was successful in establishing a connect with the masses as people could associate more to the Barrister-Mahatma than others in the lawyers gowns and suits including Nehrus: both Motilal and Jawaharal, Sapru, Jinnah, Katju, etc. The figure of a lawyer was replaced by that of a renouncer as a leader of anti-colonial movement. The Gandhian, RSS, RKMite teleology of freedom was grounded in the Indic discourse of renunciative freedom known as Moksha, as differing from the western discourse of legislative freedom grounded in the ideas of identities; national, ethnic, private, racial, etc.

The Indic idea was not narrowed and limited to legislative freedom, it was primarily based on four pillars viz. Vyashthi (The individual freedom which), Samasthi (The collective freedom); This is freedom of “We the people” and this collective when free shall create, constitute a society based on the higher principles i.e Srishthi and the goal of all this shall be not only to establish politically free society but to reach higher consciousness at all the levels i.e. Parameshthi.

A sense of mysticism entered the discourse of freedom. The Congress party had to suspend its teleology of imperial justice and persona of a lawyer. In 1947, Gandhi wanted to disband the congress party as a movement for political struggle and that was the time when this sense of persona of a lawyer again surfaced and Gandhian ideals were shelved.

The Gandhian discourse was not limited to legislative discourse but he imagined it to an enlightened anarchy. The elements of anarchy are detectable but it is the pieces of enlightenment that need to be looked upon. This element of mysticism, the philosophy which entered the law while its development from Colonialism to Imperialism to Indic Revivalism is what needs to be understood.

Chief Justice Holmes observed: “The provisions of the Constitution are not mathematical formulas having essence in their form; they are organic living institutions. The significance is vital and not formal. It is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth”[3]

[1] Mithi Mukherjee, India in the shadows of empire: A legal and political history 1774-1950, Oxford university Press, second impression, 2015

[2] Ibid

[3] Gompers V. U.S. (1914)

It was not only the past but the contemporary present of other nations too that moulded the Indian Constitution. Based on the motto of “Aano Bhadra Krtva Yantu Vishwatah” i.e “Let the noble thoughts come from everywhere”, the Constitution of India also got inspiration from different Constitutions. Also for the reason that the Constitutions have come and gone like kingdoms and republics. Aristotle gathered 157 Constitutions of the then Greek world, different experiments have been made and alternative solutions have been tried to meet the needs of different societies. It was highly impossible for a modern Constitution maker to invent altogether a novel system or device which couldn’t be found in any other system.

Experiences of other jurisdictions provided a great raw material to the Constituent Assembly. Almost 75% of the Constitutional provisions find their genesis into the Government of India Act 1935. The concept of Fundamental Rights was taken from the United States, Federal form of Govt. from Canadian Constitution. The organs of the state were similar to that in England and later through the 42nd Amendment to the Constitution the concept of Fundamental Duties were borrowed from erstwhile USSR. The Australian Constitution inspired the Center-State Financial relationships in India while the concept of Directive Principles of State Policy was inspired from Ireland.

The makers of Constitution didn’t shy away from confessing many provisions to be “borrowed ones”[1] as the aim was not to create a document to get intellectual property rights but to constitute and govern the largest democracy on the face of the Earth. The modus adopted was similar to what Swami Vivekananda quoted from Shivamahima Strotam in his speech at the World Parliament of Religion in Chicago on 11th Sept 1893 : “As the different streams having their sources in different places all mingle their water in the sea, so, the different paths which men take through different tendencies, various though they appear, crooked or straight, all lead to Thee.” These different doctrines, principles and legal concepts, from wherever they came, found their place in the Constitution only for the better administration of justice in India.
Dr. Radhakrishnan, when visited west to deliver a lecture, encountered a question about the ‘borrowed’ nature of the Constitution, to which he replied that “A good planted transported to a barren soil dies, but even an ill-plant when transferred to a healthy soil flourishes. It is only because of the healthy soil of India that these concepts flourish here”. May be that is the reasons that some of the concepts couldn’t sustain in their parent jurisdictions and in some cases even that jurisdiction has ceased to exist but the very concept survives in India with full life.

[1] D.D. Basu, Comparative Constitutional Law, Lexis Nexis, 3rd Edn, 2014

In case of any suggestion, edition or contention please feel to contact the author Nitish Rai Parwani at nitimanthan@gmail.com