The Philosophy of the Constitution

A constitution is not only a document that contains laws but also moral values. It
cannot be looked at only through a legalistic lens and needs to be supplemented
through the philosophical outlook.

How can we understand the philosophy of the Indian constitution?

The constitution as a document is based on a set of moral principles. To make sense

of the constitution's substance, we need to use a political philosophy perspective.

When it comes to the philosophy of the constitution, one must keep three things in
mind.

1. Conceptual Structure

We need to understand the conceptual structure of the constitution. Proper

knowledge must be there of the terms used in the constitution such as,’ Citizenship,
Minority or Democracy.

2. Coherent Vision of Society and Polity

An attempt must be made to work out a coherent vision of society and polity
conditional upon an interpretation of the key concepts of the constitution. We must
have a better grasp of the set of ideas embedded in the constitution.

3. Read in Conjunction with Constituent Assembly Debates

The Indian Constitution must be read in conjunction with the Constituent Assembly
debates to refine and rise to a higher theoretical plane, the justification of values
embedded in the Constitution.

A philosophical treatment of a value is incomplete if a detailed justification for it is not

provided. When the framers of the Constitution chose to guide Indian society and
polity by a set of values, there must have been a corresponding set of reasons.
Many of them, though, may not have been fully explained.

Why is a philosophical approach needed?

A political philosophy approach to the constitution is necessary not only to evaluate
the moral content expressed in it and to examine its claims, but it may also be
utilised to resolve disagreements over our polity's multiple vital principles.

These political concepts are interpreted in a variety of ways, and they are
occasionally purposely misrepresented to achieve short-term political goals. As a
result, we must assess whether the constitutional ideal and its manifestation in other
spheres are incompatible.

Which constitution is popularly known as the 'peace

constitution' and why?

The post-world war II constitution of Japan drafted and adopted in 1947 is popularly
known as the 'Peace Constitution'.

The philosophy of the Japanese constitution is based on the ideal of peace. These
ideals are reflected in the preamble and Article 9 of the constitution. It can be said
that these values dominated the thinking of the constitution-makers post their war
experience.

Why is the Indian constitution considered a means of democratic

transformation?

One of the most frequently accepted reasons for having constitutions is to limit the
state's ability to exercise excess power. The regulations must be constructed in such
a way that the despotic tendencies of states are constantly controlled. As a result,
constitutions establish the basic norms for preventing states from engaging in such
excesses. Constitutions provide democratic means to bring peace transitions.

The Indian constitution is considered a means of democratic transformation as it

provides peaceful, democratic means to bring about social transformation. Moreover,
it announced and embodied the first real exercise of political self-determination.

The Indian Constitution was designed to break the shackles of traditional social
hierarchies and to usher in a new era of freedom, equality and justice. In this
manner, the Indian constitution exists not only to limit people in power but to
empower those who traditionally have been deprived of it.

Constitutions can give vulnerable people the power to achieve collective good.

Why do we need to study the framing of the Indian constitution by

the Constituent Assembly?

Students of politics should understand the goals and concerns of those who
established the Constitution, just as legal historians must trace the origins of legal
and political doctrines back in time.

Why is the study of constituent assembly relevant in Indian context and not
American?

In the context of the United States, the goals and standards have changed
considerably between the 18th and 21st centuries, and studying the constitution's
framing may not be very fruitful for political science students.

However, in India, the world of the original framers and the one we live in today may
not have altered nearly as dramatically. Understanding of the Indian constitution's
framing helps one's understanding of current constitutional practice, as well as their
importance and purpose.

What is the Political Philosophy of the Indian

Constitution?

The Philosophy of the Indian Constitution cannot be described in one word. It resists
any single label because it is liberal, democratic, egalitarian, secular, and federal,
open to community values, sensitive to the needs of religious and linguistic minorities
as well as historically disadvantaged groups, and committed to building a common
national identity.

In short, it is committed to freedom, equality, social justice, and some form of

national unity. But underneath all this, there is a clear emphasis on peaceful and
democratic measures for putting this philosophy into practice.
The following highlight some of the important aspects of the Indian constitution.

1. Individual freedom

An important point to note about the Constitution is its commitment to individual

freedom. It was the product of the continuous intellectual and political activity of well
over a century.

Freedom of Press

Ram Mohan Roy protested against the curtailment of the freedom of the press by the
British colonial state. Indians continued to demand a free press throughout British
rule. It is not surprising therefore that freedom of expression is an integral part of the
Indian Constitution.

Freedom from Arbitrary Protest

The infamous Rowlatt Act, which the national movement opposed so vehemently,
sought to deny this basic freedom.

Individual liberties, such as freedom of conscience are part of the liberal ideology.
On this premise, we might conclude that the Indian Constitution is quite liberal.

2. Social Justice

Classical liberalism always privileges the rights of the individuals over demands of
social justice and community values.

The liberalism of the Indian Constitution differs from this version in two ways:

● First, it was always linked to social justice. The best example of this is the
provision for reservations for Scheduled Castes and Scheduled Tribes in the
Constitution. The makers of the Constitution believed that the mere granting
of the right to equality was not enough to overcome age-old injustices suffered
 by these groups or to give real meaning to their right to vote. Special
constitutional measures were required to advance their interests.

● Second, The Constitution also made it possible for the government to reserve
public sector jobs for these groups. The constitution-makers also provided
several special measures to protect the interests of Scheduled Castes and
Scheduled Tribes such as the reservation of seats in legislatures.

3. Respect for Diversity and Minority Rights

The Indian Constitution encourages equal respect between communities. This was
not easy in our country because:

First, the communities do not always have a relationship of equality; they tend to
have hierarchical relationships with one another (as in the case of caste).

●
● Second, when these communities do see each other as equals, they also tend
to become rivals (as in the case of religious communities). It was important to
ensure that no one community systematically dominates others. This made it
mandatory for our Constitution to recognize community-based rights.

One such right is the right of religious communities to establish and run their own
educational institutions. Such institutions may receive money from the government.
This provision shows that the Indian Constitution does not see religion merely as a
private matter concerning the individual. Secularism:

4. Secularism

Secular states are widely seen as treating religion as only a private matter. That is to
say, they refuse to give religion public or official recognition. This is the mainstream
western conception of secularism and means the mutual exclusion of state and
religion in order to protect values such as individual freedom and citizenship rights of
individuals.

What does the term 'Mutual Exclusion' mean?

The term ‘mutual exclusion’ means that: both religion and state must stay away from
the internal mutual affairs of one another. The state must not intervene in the domain
of religion; religion likewise should not dictate state policy or influence the conduct of
the state.

In other words, mutual exclusion means that religion and state must be strictly
separated. To protect the religious freedom of individuals, therefore, the state must
not help religious organisations. But at the same time, the state should not tell
religious organisations how to manage their affairs.

This strict separation helps in safeguarding the freedom of individuals. States which
lend support to organised religions make them more powerful than they already are.

Secularism in India

The term ‘secular’ was not initially mentioned; the Indian Constitution has always
been secular. The makers of the Constitution had to work out an alternative
conception of secularism. They departed from the western model in two ways and for
two different reasons.

i) Rights of Religious Groups

The framers of the Indian constitution realised that Intercommunity equality was as
necessary as equality between individuals. This was because a person’s freedom
and sense of self-respect was directly dependent upon the status of her community
allowing citizens to walk about with dignity, self-respect and freedom.

The Indian Constitution grants rights to all religious communities such as the right to
establish and maintain their educational institutions. Freedom of religion in India
means the freedom of religion of both individuals and communities.

ii) State’s Power of Intervention

The separation of religion in India does not mean 'mutual exclusion but principled
distance.'
This was necessary because religiously sanctioned customs such as untouchability
deprived individuals of the most basic dignity and self-respect and for this reason,
the state simply had to interfere in the affairs of religion. This intervention is however
not negative. It allows the state to be distant from all religions so that it can intervene
or abstain from interference, depending upon which of these two would better
promote liberty, equality and social justice.

The state could also help religious communities by giving aid to educational
institutions run by them. The state may help or hinder religious communities
depending on which model of action promotes values such as freedom and equality.

5. Universal Adult Franchise

In stable Western democracies, the right to vote has only been extended to women
and the working class post WWII.

In stable Western democracies, the right to vote has only been extended to women
and the working class post WWII. On the other hand, Indian nationalism has always
envisioned a political order founded on the will of every single member of society.
The concept of universal suffrage was firmly embedded in the heart of nationalism.
The following approaches can substantiate this:

The author of the Constitution of India Bill (1895) - the first non-official attempt at
creating a constitution for India asserted that every citizen had the right to participate
in the affairs of the country and be admitted to public office.

The Motilal Nehru Report (1928) reinforces this view of citizenship, stating that
everybody over the age of twenty-one, regardless of gender, is eligible to vote in the
House of Representatives or Parliament.

6. Federalism

The essential concept of asymmetric federalism is foreshadowed in the Indian

Constitution. Despite the Indian Constitution's unitary tendency, there are significant
constitutionally embedded disparities in the legal status and prerogatives of various
sub-units within the same federation.
Politically, each major linguistic group is recognised, and all are treated equally. As a
result, India's democratic and linguistic federalism has been able to reconcile calls to
unity and cultural acknowledgment. There is a very strong political arena that allows
for the interaction of many identities that are complementary to one another.

The Indian constitution's federalistic aspect can be shown in the following example:

The North-Eastern State of Nagaland was granted special status under Article 371A
of the Constitution. This article not only gives pre-existing laws in Nagaland legal
force, but it also safeguards native identity through immigration limitations.

7. National Identity

Our Constitution fosters a shared national identity on a regular basis. The Indian
Constitution attempted to balance these multiple identities, recognising that a shared
national identity was not incompatible with distinct religious or linguistic identities.

Separate electorates were rejected by the architects of the Indian constitution not
because they created religious differences per se or because they jeopardised a
basic sense of national unity, but because they jeopardised a healthy national life.

Rather than imposing unity, our Constitution aimed to foster true brotherhood, a goal
dear to Dr. Ambedkar's heart. The essential goal, as Sardar Patel expressed it, was
to create "one community."

What are some procedural achievements of the Indian

constitution?

1. Reinvents Liberal Individualism

Our Constitution reinforces and reinvents forms of liberal individualism. This is an important
achievement because this is done in the backdrop of a society where community values are
often indifferent or hostile to individual autonomy.

2. Upholds Social Justice without Compromising Individual Liberties

Our Constitution upholds the principle of social justice without compromising on individual
liberties. The constitutional commitment to caste-based affirmative action programmes
shows how much ahead India was compared to other nations.

3. Commitment to Group Rights

Our Constitution upholds its commitment to group rights (the right to the expression of
cultural particularity). This indicates that the framers of the Constitution were more than
willing to face the challenges of what more than four decades later has come to be known as
multiculturalism.

4. Inclusive Approach - Universal Adult Franchise

The Indian Constitution reflects faith in political deliberation. We know that many groups and
interests were not adequately represented in the Constituent Assembly. But the debates in
the Assembly amply show that the makers of the Constitution wanted to be as inclusive in
their approach as possible.

This open-ended approach indicates the willingness of people to modify their existing
preferences, in short, to justify outcomes by reference not to self-interest but reasons. It also
shows a willingness to recognise the creative value in difference and disagreement.

It reflects a spirit of compromise and accommodation. These words, compromise and

accommodation, should not always be seen with disapproval. Not all compromises are bad.

What are some criticisms of the Indian constitution?

1. India's Constitution is Large

The first criticism is based on the assumption that the entire constitution of a country must be
found in one compact document.

In the case of India, many details, practices and statements are included in one single
document and this has made that document somewhat large in size. Many countries, for
instance, do not have provisions for the election commission or the civil service commission
in the document known as the constitution.

But in India, many such matters are attended to by the Constitutional document itself.
2. Indian constitution is Unrepresentative

A second criticism of the Constitution is that it is unrepresentative. Here we must distinguish

two components of representation, one that might be called voice and the other opinion.

The voice component of representation is important. People must be recognised in their own
language or voice, not in the language of the masters. The Indian Constitution is indeed
unrepresentative because members of the Constituent Assembly were chosen by a
restricted franchise, not by universal suffrage.

However, if we examine the other dimension, we may not find it altogether lacking in
representativeness. The claim that almost every shade of opinion was represented in the
Constituent Assembly may be a trifle exaggerated but may have something to it.

If we read the debates that took place in the Constituent Assembly, a vast range of issues
and opinions that were mentioned are found, members raised matters not only based on
their individual social concerns but based on the perceived interests and concerns of various
social sections as well.

3. Indian constitution is extremely borrowed and thus alien

A final criticism alleges that the Indian Constitution is entirely an alien document, borrowed
article by article from western constitutions and sits uneasily with the cultural ethos of the
Indian people.

This criticism is often voiced by many, even in the 'Constituent Assembly 'itself, there were
some voices that echoed this concern.

How is the Indian constitution selective adaptation and not borrowing?

Embracing Modern Thinking

Indians have not only embraced but also made modern methods of thinking their own.
Westernisation became a form of protest for Indians against the filth in their own culture.

From Rammohun Roy to Dalits, Indians have used British-imposed modern laws to effect
significant changes in their society.

The Evolution of a Hybrid Culture

When western modernity collided with native cultural systems, something like a hybrid
culture emerged, probably as a result of creative adaptation, with no analogue in either
western modernity or indigenous tradition.

As a result, when we drafted our Constitution, we tried to incorporate both western and
traditional Indian principles. Rather than borrowing, it was a process of selective adaptation.

What are the limitations of the Constitution?

There are certain limitations fn the Indian Constitution such as :

1. India has a centralised Idea of national unity.

2. It appears to have glossed over some important issues of gender, justice, particularly
within the family.
3. It is also not clear why in a poor developing country, certain basic socio-economic rights
were relegated to the section on Directive Principles rather than made an integral feature of
our fundamental rights.

What is Secularism?
Inter-Religious Denominations

Inter-religious Domination is a situation where a Community, religion dominates the

other. Suppressing religious minorities happens to be the major cause of the Inter-
Religious Denominations.

Example: The Constitution of India facilitates its citizens by the right to equality and
the right to live freely and with dignity but there are some forms of discrimination that
continue in reality:
● More than 2,700 Sikhs were massacred in Delhi and many other parts of the
country in 1984. The families of the victims feel that the guilty were not punished.
● Several thousands of Hindu Kashmiri Pandits have been forced to leave their
homes in the Kashmir valley; they have not been able to return to their homes for
more than two decades.
● More than 1,000 persons, mostly Muslims, were massacred during the post-
Godhra riots in Gujarat in 2002. The surviving members of many of these families
could not go back to the villages in which they lived.
In all the above-mentioned examples we saw religious discrimination in one form or
the other. Here, one community is targeted and victimized on the account of their
religious identity.

Intra-religious Denominations

Thus religious domination cannot be identified only with inter religious domination. It
takes another conspicuous form, namely, intra-religious domination.

Intra religious domination: situations where a community/religion dominates its own

members. For example, Dalits are at a very low hierarchy and they are treated
inhumanely and like slaves by upper castes.

In religions such as Hinduism, some sections have faced persistent discrimination.

For example, Dalits have been barred from entering Hindu temples. In some parts of
the country, Hindu women cannot enter temples.

When religion is organised, it is frequently taken over by its most conservative

faction, which does not tolerate any dissent. Religious fundamentalism in parts of the
US has become a big problem and endangers peace both within the country and
outside. Many religions fragment into sects which leads to frequent sectarian
violence and persecution of dissenting minorities.

Secular State
What is a Secular State?

A secular state claims to treat all its citizens equally regardless of religion and claims to
avoid preferential treatment for a citizen based on their religious beliefs, affiliation or lack of
either over those with other profiles.

A state must not be run by the heads of any particular religion. For this, a state is needed
that could prevent religious conflict and promote religious harmony.

How can a state avoid being dominated by any religious groups?

Theocratic States
A theocratic state is one that is governed directly by a priestly order. Theocratic states, such
as the Papal States of Europe in mediaeval times or the Taliban-controlled state today, lack
separation between religious and political institutions and are known for their hierarchies,
oppressions, and unwillingness to allow members of other religious groups to practise their
religion freely.

Religious institutions and state institutions must be kept separate if we value peace,
freedom, and equality. There are also states that are not theocratic but have a close
relationship with a particular religion..

Example: The state in England in the sixteenth century was not run by a priestly class but
clearly favoured the Anglican Church and its members. England had an established Anglican
religion, which was the official religion of the state.

Today Pakistan has an official state religion, namely Sunni Islam. Such regimes may leave
little scope for internal dissent or religious equality.

Way Forward

A state must not only refuse to be theocratic but also have no formal alliance with any
religion. However, the separation of religion and state is a necessary but not sufficient
component of a secular state.

A secular state must adhere to principles and goals that are derived in part from non-
religious sources.

Peace, religious freedom, and freedom from religiously based oppression, discrimination,
and exclusion, as well as inter-religious and intra-religious equality, are all principles that a
secular state must adhere to.

Western Model of Secularism

All secular states share a common path in that they are neither theocratic nor
proponents of any religion. The best way to describe the western model of
secularism is mutual exclusion: the state will not intervene in religious affairs, and
religion will not interfere in the affairs of the state.

Each of them has its own sphere with its own set of rules and jurisdiction. There can
be no state policy that is solely based on religious principles. Any public policy
cannot be based on religious classification. If this occurs, there will be an illegitimate
religious intrusion into the state.

Any religious institution cannot be aided by the state. It is unable to provide financial
assistance to religiously run educational institutions. It can't stop religious
communities from doing what they want as long as they stay within the bounds of the
law of the land.

This popular viewpoint takes an individualist approach to freedom and equality. The notion
that a community has the freedom to follow practises of its own choosing has no merit.
Community-based or minority rights have little room to grow.

The concept of state-sponsored religious reform has no place in this version of mainstream
secularism. This feature stems from its belief that the separation of state and church/religion
entails a mutual exclusionary relationship.

The Indian Model of Secularism

Indian secularism is fundamentally different from Western secularism. The country
already had the feature of inter-religious tolerance. India is a diverse country having
some space for every religion.

The advent of western modernity brought to the fore hitherto neglected and
marginalised notions of equality in Indian thought. It sharpened these ideas and
helped us to focus on equality within the community. It also ushered ideas of inter-
community equality to replace the notion of hierarchy.

The Indian Model of secularism equally focusses on the inter-religious and the intra-
religious dominations also equally opposed the oppression of Dalits and women
within Hinduism, the discrimination against women within Indian Islam or Christianity,
and the possible threats that a majority community might pose to the rights of the
minority religious communities

● Indian secularism deals not only with the religious freedom of individuals but
also with the religious freedom of minority communities

● Indian secularism has also made a room for and is compatible with the idea of
state-supported religious reform. Thus, the Indian constitution bans untouchability.
The Indian state has enacted several laws abolishing child marriage and lifting the
taboo on inter-caste marriage sanctioned by Hinduism

● The secular character of the Indian state is established by virtue of the fact that
it is neither theocratic nor has it established any one or multiple religions. It has
adopted a very sophisticated policy in pursuit of religious equality.

This allows it either to disengage with religion in the American style, or engage with it
if required.
The Indian Constitution grants all religious minorities the right to establish and
maintain their own educational institutions which may receive assistance from the
state. These strategies are adopted by the state to promote the values of peace,
freedom and equality.

Criticism of Indian Secularism

India being such a diverse country, comprising many religions, is always the subject
of fierce criticism. There are several grounds on which Indian secularism is being
criticised.

Anti-Religious

It is often argued that the Indian constitution is anti-religious but stating a constitution
against institutionalised religious domination, is not the same as being anti-religious.

It clearly protects religious identity rather than threatens it. It undermines some forms
of religious identity: those, which are dogmatic, violent, fanatical, exclusivist and
those, which foster hatred of other religions.

Western Import

Secularism is often linked to Christianity and considered unsuited for the Indian
tradition. A secular state may keep a principled distance from religion to promote
peace between communities and it may also intervene to protect the rights of
specific communities.

India evolved a variant of secularism that is not just an implant from the west on
Indian soil. The fact is that secularism has both western and nonwestern origins.

In the west, it was the Church-state separation that was central and in countries such
as India, the idea of peaceful coexistence of different religious communities has
been important.

Minorities

The third accusation against secularism is the charge of minorities. Yes, Indian
secularism does advocate minority rights. But it is also said that it should not be seen
as a special privilege to some.

Minority rights are justified as long as these rights protect their fundamental interests.
It is to treat them with the same respect and dignity with which all others are being
treated. The lesson is that minority rights need not be nor should be viewed as
special privileges.

Interventionist

A fourth criticism claims that secularism is coercive and that it interferes excessively
with the religious freedom of communities.

By rejecting the idea of separation as mutual exclusion, Indian secularism rejects

non-interference in religion. But it does not follow that it is excessively interventionist.
Indian secularism follows the concept of principled distance which also allows for
non-interference.

Indian secularism also permits state-supported religious reforms. Personal laws can
be seen as manifestations of freedom from inter-religious domination or as instances
of intra-religious domination.

Personal laws can be reformed in such a way that they continue to exemplify both
minority rights and equality between men and women.

Such reform should neither be brought about by State nor group coercion nor should
the state adopt a policy of total distance from it. The state must act as a facilitator by
supporting liberal and democratic voices within every religion.

Vote Bank Politics

There is also a criticism relating to the promotion of vote bank politics. It is said that
Indian secularism promotes vote bank politics.

The real concern is what precisely the vote is sought for. If the group which voted for
the politician does not get any benefit from this act, then surely the politician must be
blamed.

If secular politicians who sought the votes of minorities also manage to give them
what they want, then this is a success of the secular project which aims, after all, to
also protect the interests of the minorities

The mere fact that secular parties utilise vote banks is not troublesome. All parties
do so in relation to some social group.

Impossible Project
A final, cynical criticism might be that secularism fails because it tries to solve an
intractable problem by doing too much.

It is said that people of such diverse religious beliefs will not be able to coexist
peacefully. As a result, it isn't ultimately correct. The history of Indian civilization
demonstrates that such coexistence is possible.

The main reason for classifying it as an impossible project is that it is based on

equality. With the intensification of globalisation, people from former colonies are
migrating to the west, and people from other parts of the world are migrating to
Europe and America, as well as some parts of the Middle East.

In terms of the diversity of cultures and religions present in their societies, the East is
beginning to resemble India. These societies are keeping a close eye on the Indian
experiment's future.

What is Kemal Ataturk’s Secularism?

Secularism was practised in Turkey during the early years of the twentieth century. This
secularism was not about the principled distance from organised religion, instead, it involved
active intervention in and suppression of, religion.

This version of secularism was propounded and practised by Mustafa Kemal Ataturk. He
came to power after the first world war & was determined to put an end to the institution of
Khalifa in the public life of Turkey.

Kemal took action in an aggressive manner to modernise and secularise turkey.

The Fez, a traditional cap worn by Muslims, was banned by the Hat Law. Western clothing
was encouraged for men and women. The Western (Gregorian) calendar replaced the
traditional Turkish calendar.

In 1928, the new Turkish alphabet (in a modified Latin form) was adopted. The term
“Secular” means being "separate" from religion or having no religious basis.

Secularism means the separation of religion from political, economic, social and cultural
aspects of life, religion is treated as a purely personal matter.

It promotes freedom and equality within and between religions. As secularism is opposed to
all forms of institutionalised religious domination, it challenges not merely inter-religious but
also intra-religious domination.

What do we understand by ‘Religious Denominations’?

It refers to the fact when a subgroup within or of any sole religion operates under a common
identity, name or tradition.

The term is referred to various denominations in Christianity, Islam, Judaism and Hinduism
etc.