Sunday 20 October 2013

Constitutional Jurisprudence

by Justice Markandey Katju,

1.      Introduction
2.      Historical British Constitutional Developments
3.      John Locke’s Theory of Natural Rights and  the American Constitution
4.     The Indian Constitution

1.     Introduction
Jurisprudence is the Philosophy of Law. In other words it seeks to explain what law is all about in the most general way.
When we discuss and deal with the law, ordinarily we discuss specific subjects in law e.g., income tax, labour law, family law, service law, criminal law, law of torts, etc.
In jurisprudence we do not discuss these specific topics and instead we discuss questions like what is law? How did it originate? What is its object? What are its basic concepts? etc.
Therefore when we talk of Constitutional Jurisprudence we will have to ask: what is a Constitution, what is its purpose, what is its position in the legal system of the country, etc.
A Constitution is the social contract by which the people in a country are governed. It is a politico-legal document, unlike ordinary statutes, which are purely legal documents.

A Constitution is the fundamental law of the land, and therefore it prevails over all the other laws in the legal hierarchy, including statutes made by the legislature. It is the grund norm, as described by the eminent positivist jurist Kelsen.

Why have a Constitution at all?  The answer becomes obvious when we consider the purpose of a Constitution? In every society, whether ancient, medieval or modern, there have to be some authorities. No society can do without governance, and therefore in every society there have to be leaders and persons in authority.

 The basic purpose of a Constitution, therefore, is to set up the organic law of the land. In other words, the first purpose of a Constitution is to set up the organs of power in a country, and mention their functions and inter-se relationship and relation with the people.
Originally all Constitutions were unwritten, established by culture, conventions, social practices and historical developments.

In feudal monarchies, as in the days of the Tudor Kings in England, the king was the absolute ruler - the Supreme legislative, executive and judicial authority. In actual practice, though, he could not possibly perform all these functions himself, and hence he delegated many of these to his delegates, who were described as advisors, councillors, judges, etc. These persons performed the routine day to day state functions, but they were accountable to the king and not to any legislative body.

Subsequently when the people no longer wished to have a king as their absolute ruler, certain checks on him were devised. These were based on the theory of natural rights propounded by John Locke, and the theory of separation of powers by Montesquieu. These checks on the king’s absolutism were then incorporated into the country’s Constitution. Thus, apart from setting up the organic law of the law, i.e. setting up the organs of power, the second purpose of a Constitution (in modern times) was to put checks on these organs so that they may not act arbitrarily and oppressively.

There are other purposes of a Constitution too, but before we go into these we may discuss the historical constitutional developments in England, as that will greatly help our understanding of modern Constitutions.

2.                 Historical British Constitutional Developments  
The Tudors
            The Tudor Kings ruled in England from 1485 (when Henry VII became King) to 1603 (when Elizabeth 1, the last Tudor monarch, died).
            The Tudors were absolute rulers. They had a body of advisers called the Privy Councillors, to many of whom important state functions were delegated by the King/Queen, but these were selected by the monarch himself, were accountable to him alone, and held office at his pleasure.
            There was no doubt a body called Parliament, but this was a timid and weak body in the times of the Tudors, who could imprison or even execute its members if he was displeased with them for any reason. There was no freedom of speech at that time.
            How powerful were the Tudors can be realized from the fact that Henry VIII even got his Lord Chancellor Sir Thomas More and his chief adviser Thomas Cromwell beheaded and Cardinal Wolsey would have met the same fate but for his death during custody. His daughter Elizabeth I got the Duke of Norfolk and the Earl of Essex beheaded.

The Stuarts
            The great crisis in the struggle between personal monarchy and parliamentary Government began with the advent of the House of Stuart to the throne of England in 1603. This was one of the turning points in history. In one of his speeches James I, the first Stuart King, who was the author of the Theory of Divine Right of Kings said “as it is atheism and blasphemy to dispute what God can do, so it is presumptuous, and a high contempt, in a subject to dispute what a King can do, or to say that the King cannot do this or that”
            As Englishmen were by nature tenacious of their rights and blunt in their assertion of them, as they were temperamentally little disposed to accept a role of passive obedience, there was here ample material for contention, and contention raged over the whole field of British national life throughout the seventeenth century and was carried into the eighteenth century. It was the Glorious Revolution of 1688 which established that Parliament, not the King, was the supreme power of the State. By the Bill of Rights 1689 the King was forbidden to suspend or violate the laws, to levy taxes or raise troops without the consent of Parliament, or to deny his subject the full exercise of their rights.

Changes in the British Constitution
            As mentioned above, the Tudor Monarchs were absolute rulers. However in the reign of the Stuarts (from 1603 to 1688) and thereafter important changes in the British unwritten Constitution took place, some by changes in Constitutional conventions, and some by Acts of Parliament.
            As already mentioned, the Tudor monarchs were absolute rulers. In the times of the Stuarts, however, this absolutism began to be challenged by Parliament. A Civil War broke out in 1642 between King and Parliament, which resulted in the execution of King Charles I, in 1645 by Oliver Cromwell’s forces. After Cromwell’s death in 1658, Charles II, son of Charles I, was installed as the new King in 1660. He ruled till 1685 when he died, and then his younger brother becomes King as James II, who ruled only for 3 years till 1688 when he fled to France.

            The Stuart Kings were Protestants. After Henry VIII broke away from the Roman Catholic Church (since the Pope was not willing to annul his marriage with Catherine of Aragon), a majority of Englishmen gradually became Protestants. These Protestants hated Roman Catholics, and were unwilling to have a Catholic as their King.

            James II, though born a Protestant, had converted to the Roman Catholic faith in the reign of his elder brother, Charles II. When this became known, some Protestant members of the House of Commons introduced a bill in the House in 1679, known as the Exclusion Bill. This sought to exclude Roman Catholics, and therefore Charles’ younger brother James, from the throne of England. Charles II became very angry at this Bill, and dissolved the House, so the Bill never became a law. But it led to the formation of two political factions, which later became two political parties, the Whigs and the Tories. The Whigs supported the Exclusion Bill, and were against a strong monarchy, while the Tories opposed the Bill, and wanted a strong monarch.

            When King James II fled from England in 1688 Parliament replaced him by his Protestant son-in-law, William of Orange. This was known as the Glorious Revolution of 1688, and it was followed in 1689 by a Parliamentary enactment known as the Bill of Rights.

            The Glorious Revolution and Bill of Rights effectively transferred real power from the King to Parliament. The Glorious Revolution established the precedent that Parliament could transfer the Crown of England from one head to another, something which was inconceivable in the time of the Tudors. The Bill of Rights gave the power of the purse to Parliament, for it enacted that the King could not levy any taxes except with the consent of Parliament. It also laid down that the king could raise no armies except with the consent of Parliament, and members had immunity for what they said in Parliament. The power of the purse is the real power, for without money the king could do nothing.
            These historical events thus made Parliament effectually supreme. If followed that the party having majority in the House of Commons had the right to form the government, called the Cabinet.

The Cabinet System

            As mentioned before, the king had to have advisers to properly discharge state functions. This body of advisers in England was known as the Privy Council, but its members were all appointed by the King, were accountable to him, and held office at his pleasure.

            Later, out of the Privy Council the king would select a smaller body consisting of those Privy Councillors in whom he had most confidence, and this smaller body met for deliberations in a room set apart for this purpose called the cabinet. This body later came to be known as the cabinet, but it was appointed by, and accountable to, the king, who presided over its meetings.

            When Queen Anne died issueless in 1712 Parliament invited her second cousin George of Hanover, who was a Protestant, to become King of England, which he did as George I.

            Since George I was a German who could not speak English, he stopped attending meetings of the Cabinet, and hence the leader of the Whigs started presiding over it, and thus effectively became the Prime Minister.

            Sir Robert Walpole was the first Prime Minister of England, who was in office from 1721 to 1742. He was a Whig, which party had a majority in the House of Commons. Three new conventions were thus established: (1) The party having a majority in the House of Commons had the right to form the government (2) The leader of this Party in the House had the right to become the Prime Minister, and (3) The other Ministers would be chosen by the Prime Minister, not the king.

            All these were revolutionary changes, inconceivable in the times of the Tudors, or even the Stuarts, and they are the basis of modern democracy. By these changes effective power passed to Parliament and the king became a mere figurehead.

            An important statutory change which also needs to be mentioned is the Act of Settlement, 1701 which gave job security, and thus, real independence to Judges. Earlier, Judges in England held office at the King’s Pleasure, and could be dismissed by him anytime and without ascribing reasons, levying a charge, or giving opportunity of hearing. But by this Act, Judges could only be removed by impeachment by Parliament, and after framing charges and giving an opportunity of hearing.

            The 1832 Parliamentary Reform Act abolished ‘rotten’ boroughs in England and enfranchised people living in the cities which had arisen because of the Industrial Revolution.

            When the House of Lords rejected the budget approved by the House of Commons in 1909, the Parliament Act, 1911 then removed the right of the Lords to veto money bills. Other bills passed by the House of Commons could also not be vetoed, but delayed by the Lords for only upto two years. The 1949 Parliament Act reduced this period to one year.

            All these statutes thus effectively made the House of Commons the real legislative body in England, while the House of Lords substantially lost its powers.

            The European Communities Act 1872 was passed when England wanted to join the European Community, and this provided for incorporation of European Community Law into the domestic law of the United Kingdom.

3.                  John Locke’s Theory of Natural Rights and the American Constitution
            We have seen above how effective state power was transferred in England from the King to Parliament, and later to one of the two Houses of Parliament viz. the House of Commons, which represented the people.   

            Normally Parliament represented the people, and therefore was expected to act in the interest of the people. But what would happen if Parliament started acting against the interest of the people and started oppressing them?

            It is here that the theory of the British thinker John Locke gained importance. In his Second Treatise on Civil Government, written in 1690 Locke propounded his theory of ‘natural rights’ of the people. Locke wrote that the people had certain ‘natural rights’ e.g. the right to life and liberty, right to property, etc which were inherent in man. Hence even Parliament could not encroach on these.

            This theory was the basis of the Bill of Rights incorporated in the 1789 U.S. Constitution and the Indian Constitution’s Fundamental Rights.

            The first U.S. Constitution was the Articles of Confederation, which was ratified by the States in 1781. However, this Constitution had a fundamental defect. It did not give the Central Legislature, Congress, the power to impose taxes. Without taxes Congress was totally dependent on the States for grants. This made Congress a weak body. Hence a new Constitution was adopted in 1787 giving taxing powers to Congress. But many states refused to ratify it unless it contained a Bill of Rights. Hence the first ten Amendments were incorporated, and this Constitution (the present Constitution) was ratified in 1790.

            This Bill of Rights in the U.S. Constitution was very different from the British Bill of Rights of 1689. The latter had transferred power from the King to Parliament, but gave no rights to the people. The former gave Constitutional rights to the people e.g. freedom of speech, liberty, equality, freedom of religion, etc. On similar lines the Rights of Man were declared by the French National Assembly in 1789 after the French Revolution began. These rights put a check not only on the Executive but also on the Legislature.

            The U.S. Constitution also incorporated Montesquieu’s theory of Separation of Powers, thus introducing a system of checks and balances so that no organ can have absolute powers and act arbitrarily.

            Thus we see that the second purpose of a Constitution, after setting up the state organs, was to provide a check on these organs so that they may not act arbitrarily or oppressively.

            But who would enforce these rights and checks and balances? Obviously the legislature and executive could not be entrusted to do so, because these rights were to check the powers of the legislature and executive. Hence it was the judiciary which became the guardian of the people’s rights and liberties, either expressly vide Articles 32 and 226 of the Indian Constitution, or by judicial interpretation vide judgment of the U.S. Supreme Court in Marbury v. Madison.

            A third purpose of a Constitution mentioned in some (not all) Constitutions is to declare the ideals and goals which the State should strive for, e.g. the Directive Principles of State Policy in Part IV of the India Constitution.

            A Constitution may have several other provisions too, but we need not go into them have.

4.                 The Indian Constitution
The Indian Constitution is based on western models. Our founding fathers borrowed the parliamentary form of government and independent judiciary from Britain, the fundamental rights and federal structure from the U.S. Constitution, the Directive Principles from the Irish Constitution, etc.

Thus, the basic principles and State institutions set up in our Constitution were not of our own creation. We borrowed modern principles and modern institutions from western countries and imposed them from above on our backward, semi- feudal society.

In contrast, in England, France, etc., society and the constitutional principles and modern institutions historically grew together. For instance, the right of freedom of speech, and the right to liberty, etc were achieved in England and France after long, arduous, historical struggles by the peoples of those countries against feudal despotism e.g. the British Revolutions of 1645 and1688 and the French Revolution of 1789.

In India, on the other hand these modern rights and these modern state institutions were not the product of our own struggles but were borrowed from the west and transplanted from above on our backward, semi- feudal society by the Constitution makers. Thus, these rights and these state institutions were not the result of our own struggles, but were the benefits we got from the British, American and the French people. Thus, while our Constitution is modern, our society was (and still largely is) backward. The Constitution, by incorporating modern values and setting up modern institutions has pulled Indian society forward into the modern age, and was thus of great benefit to India. For instance, the equality provisions (Articles 14 to 18) lay down modern values, whereas the caste system which still largely prevails in India represents backward, feudal values, and provides for inequality.

Similarly, the parliamentary form of government, the principle that the government is responsible to the legislature (not to a king), the principle of universal suffrage (not suffrage restricted to rich people or to males alone), the principle that the king (or the President as in India) acts not of his own sweet will but on the advice of the cabinet, etc. are all principles borrowed from England, where they had been attained after long, arduous, historical struggles from the 17th to the 19th centuries.

Similarly, the principle of independence of judiciary was borrowed by us from England. It was essential to have an independent judiciary if we wish to protect the fundamental and other rights of the citizens, because if the judiciary is not independent it ordinarily cannot have the courage to declare an act of the legislature or executive as void, or to direct the executive to act lawfully.

In England up to 1701, judges were not independent and they held office at the king’s pleasure. Theoretically, judges were only the king’s agents. The king was the fountain of justice, and the judicial function was the sovereign function i.e., the function of the king. In fact kings often used to decide cases themselves e.g. the Mughal Emperors. However as the functions of the State expanded, the king became too busy in administrative, military and other matters, and he had no time to decide cases. Hence, he delegated these functions to his delegates, who came to be known as judges.

Upto 1701, judges in England had no job security, and they could be dismissed by the king whenever he chose. Thus King James I dismissed (and even imprisoned) Lord Coke, the Chief Justice of England in 1610 because the latter said that the king could not decide cases personally as he was not learned in the law.

It was the Act of Settlement, 1701 that gave independence and job security to the judges. By this act it was declared
(1) A Judge could not be removed by the king but by the Parliament by impeachment. This meant it was the legislature, not the executive who could dismiss a Judge.
(2) This impeachment proceeding required framing specific charges against the judge and giving him an opportunity to defend himself in respect of those charges (unlike the previous position where this was not necessary). In England impeachment can be done by a simple majority vote of The House of Commons, whereas under the Indian Constitution it requires two thirds majority of each house of Parliament.

It is this job security which gives independence to our judges, as they know that they cannot be thrown out of office even if they give a verdict against the government or the legislature. This gives them courage to act independently and fearlessly.

We have thus borrowed Locke’s theory by incorporating fundamental rights in our Constitution which even the legislature cannot violate, and we have also borrowed Rousseau’s theory by making the people supreme in our country.

Thus, while the Indian Constitution sets up state organs, it also limits their powers, so that they may not become tools of oppression against the people.

The third purpose of the Indian Constitution is to declare ideals which the state should seek to achieve. These are the Directive Principles of State Policy in part IV, which are borrowed from the Irish Constitution, but also having features peculiar to the Indian context, e.g. special protection to the historically disadvantaged classes e.g. Scheduled Castes and Scheduled Tribes.

The Indian Constitution in its historical context
We may now discuss the Indian Constitution in its historical context. To do so we have to first understand what is India.

As discussed in great detail in my judgment in Kailas v. The State of Maharashtra, and on my blog, India is broadly a country of immigrants, like North America. About 92% people living in India today are descendants of immigrants. The original inhabitants of India are not the Dravidians (who were also outsiders) but the pre- Dravidian tribals e.g. bhils, santhals, gonds, todas, etc. (i.e. the Scheduled Tribes). These comprise only about 7% to 8% of the Indian population today (for details see the above mentioned judgment online).

This explains the tremendous diversity in India – so many races, castes, religions, languages, cultures etc. China is larger than India, both in population and in land area, but there is broad (though not absolute) homogeneity in China. All Chinese have Mongoloid faces, 95% belong to one ethnic group called the Han, there is one written script mandarin etc. On the other hand India is characterized by its tremendous diversity, which is broadly due to the fact that it is largely a country of immigrants.

Hence to bring the country together it is essential that all the communities, regions, lingual groups etc., be given equal respect and to be treated equally, and this the Constitution does through Articles 14 to 18 (the equality provisions), Article 25 (freedom of religion), etc.

When India became independent in 1947 Partitions riots were taking place, and large parts of the country were engulfed in religious madness. Pakistan had declared itself an Islamic state, and there must have been tremendous pressure on Pandit Nehru and our leaders to declare India a Hindu state. When passions are inflamed, it is difficult to keep a cool head. It is the greatness of Pandit Nehru and our other leaders that they kept a cool head and resisted the pressure of declaring India a Hindu state. They declared India as a secular state, which was the correct decision in a sub continent of such tremendous diversity. This becomes evident when we see what is happening in our neighbouring country. In Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat (2008) the Supreme Court elaborately discussed our secularism.

The Indian Constitution sets up a federal form of a government. Federalism caters to regional aspirations. In a country of such tremendous diversity federalism is absolutely essential. Thus, the Naga people have their own government and so do the Tamil people, the people of Punjab, of Orissa, Assam, Bengal etc. There is also a central government which is for all. The jurisdiction of the Centre and the States is demarcated by Articles 245 to 248 and the Seventh Schedule.

Unity amongst diversity is a basic theme of the Indian Constitution. Article 301 which states that trade and commerce shall be free throughout the territory of India, provides for economic unity of India, and political unity depends upon economic unity. Article 301 in effect implies that India is one economic unit, and the various states are not separate units. Thus a manufacturer having his factory in Tamil Nadu can freely sell his goods in North India, West India or East India.

India must remain united because only a united India can provide the huge market which a modern industry must have, and it is only modern industry which can generate the wealth required to lift our people out of poverty and other social evils like unemployment, lack of healthcare, etc and give them a decent life. The Indian Constitution is an important mechanism for maintaining the unity of India, a country with tremendous diversity.





  1. gr8 work sir,

  2. thank you sir for such an informative article

  3. Thank you Sir, valuable gist of synopsis for #LAWSTUDENTS

  4. katju saab,

    evolution happened from narmada river, outwards.

    aristotle whose teacher plato studied in india ) wrote theta jews went to palestibe from india.

    today all we get is endless HASBARA -- from the monopolized world media and foreign funded indian media.

    punch into google search-

    capt ajit vadakayil

  5. Sir,

    Will it be fair to call "Constitution" as the 'grundnorm' ? If I am not wrong, not even Kelsen asserts that constitution is the grundnorm of a legal structure. It is more so, since with the alteration of grundnorm, structure will also supposed to change. It is not happening in the case of Indian Constitution. Moreover, grundnorm is a "pre-supposition of a legal system"; the same can not be told about Indian constitution. Yes, fundamental ideology (e.g. Basic Structure) of Indian constitution may be qualified as 'grundnorm'. The most essential part of grundnorm is having the minimal effectiveness in itself and same authorises the other norms to operate (that includes) constitutional norms. There are few constitutional norms in India which requires the authorisation of some other norms. For instance, law making power of the State - it is subject to the principles as advocated in the Maneka Gandhi case.

    Please do correct me, if I am wrong, Sir.

  6. Thanks for sharing a post is really informative.
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