12 May 2024  |   05:48am IST

Repositioning the Constitution of India

Marian Pinheiro

Talking about Constitution, using provisions of the Constitution, are all fashionable during election season, even by those who otherwise discard and make statements and act counter to the Constitution.

The Constitution of India was adopted by the Constituent Assembly on 26th November, 1949 and came into force on 26th January, 1950. It took precisely 2 years, 11 months, 17 days to create the Constitution of India. The Constitution-makers had gone through the constitutions of about 60 countries, and the Draft Constitution was considered for 114 days. 

Jawaharlal Nehru stated at the first session, “The first task of this Assembly is to free India through a new constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.”

The Constitution of India, begins with the words ‘We, the people of India’ and there after the term ‘The people’ is repeated 140 times in the Constitution, a most repeated term in the Constitution.

Perhaps the  members of the drafting committee, were conscious, that India gained  its freedom, not  because of some tall  leader, ( though there were many) , but because of the people of India, who untiringly supported, promoted and encouraged and fuelled the struggle for freedom in every way possible and this freedom was not attained because of any single leader, or caste, or community or region or even an ideology, but was a collective endeavour of all Indians and therefore,  the Constitution, they were drafting should be capable of fulfilling the aspirations of every Indian and wipe away the tears of anxiety, tension and deprivation of each and every Indian, without any sort of discrimination whatsoever, therefore “WE THE PEOPLE OF INDIA”…. became the spirit and life of the Constitution of India and therefore the central theme of the Constitution of India is ‘THE PEOPLE’.

The People is the spirit (the atman) of the Constitution of India. This aspirations of the people for a future democratic nation is fittingly described by Gurudev Rabindra Nath Tagore in his Gitanjali 

“Where the Mind is without Fear”

“Where the mind is without fear and the head is held high

Where knowledge is free

Where the world has not been broken up into fragments

By narrow domestic walls

Where words come out from the depth of truth

Where tireless striving stretches its arms towards perfection

Where the clear stream of reason has not lost its way

Into the dreary desert sand of dead habit

Where the mind is led forward by thee

Into ever-widening thought and action

Into that heaven of freedom, my Father, let my country awake”.

The People is the soul of the Constitution , of the many mentions of The People, the most notable are in the Preamble, which indeed is the ideological basis and  is committed to Justice, Equality and Liberty for the people. 

Then there is direct reference to The People in Art 38 assuring them of a just social order and to secure welfare of all the people and their economic interests. Art 46 guarantees education for all, and Art 47 an assured level of Nutrition.

Therefore the business of governance, both at the Union and the States have to be, first and foremost, has to be, to take care of these basic essentials needs of The People namely, health, education and economic wellbeing of all The People. This is the purpose of the Constitution of India.

All the self praises and applauses, without achieving these basic necessaries for all THE PEOPLE is just hype and puff, and has no real intrinsic value to the Nation and its people. 

This theme of caring for the people is further reinforced in the oath of Office of the President as well as the Vice President and of the Governor. It is part of their solemn promise to do all that is necessary for the wellbeing of the people and in the oath of Minister, as well as members of the Parliament. These are the same terms, but with stress on  “do right to all manner of people”.

Any kind of caste based, communal, or religious discrimination, or preference of people from some regions etc, is therefore counter to the spirit of the Constitution, especially by those who have taken their oath under the Constitution.

In the year 1973, the Supreme Court of India invoked the Doctrine of the Basic Structure of the Constitution in Kesavananda Bharati Case, ensuring that the Parliament cannot take away or abridge a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.

This doctrine of Basic structure does include certain basic precautions against abuse or over use of power by the legislature and the executive, that laws shall not alter, Supremacy of the Constitution nor its Secular Character, the coming into being of the Welfare State, assuring socio-economic justice and governance according to the Rule of law etc. 

The courts have also held that effective access to justice as part of the Basic structure of the Constitution. There are many cases wherein the judiciary using the basic structure doctrine effectively warded off, the repeated assaults on the Constitution, to undermine, the value and vision of the Constitution.

Now five decades after, the Doctrine, the judiciary will require a much stronger tool or a Doctrine, to ward off further attacks on the Constitution by various vested interests. That effective method would be, by resuscitation of the spirit (atma) of the Constitution and insist on the People’s welfare as the prime obligation of the elected members and the very purpose of their existence of such people’s representatives. This may halt the enactment of laws, counter to the interests of the People and prevent conflicts and violence between the governing elite and the people. After all, is not, seven decades sufficient time to insist on positive actions, for the implementation of the Directive Principles of State Policy?

(The writer is a Professor of Law & an Education Consultant)


Iddhar Udhar