Abrasion of Constitutional Ethics By: Ayush Akar

The Author, Aayush Akar 2nd-year student pursuing a BA.LLB (Hons.) from National Law University, Odisha

Introduction

The conscience of the wielders of state power fails to resonate with the conscience of the Constitution.[1] The idea of constitutional morality and judicial values undertake myriad dimensions in a democratic system and thus affect the dignity and freedom of individual citizens in a multitude of ways. Essentially, the basic concept of constitutional morality can be defined as a paramount reverence for the forms of the Constitution enforcing obedience to authority and acting under and within these forms.[2]  In the perspective of Dr. Ambedkar, constitutional morality means effective coordination between conflicting interests of different people and the administrative cooperation to resolve these disputes amicably without any confrontation amongst the various groups working for the realization of their ends at any cost.[3] In his opinion, the moral fabric of society, that is, the governed and the government should be strong. Democracy in India was only, as he put it, ‘top dressing on Indian soil, which is essentially undemocratic.’[4] Our people have ‘yet to learn’ constitutional morality.

Therefore, the ambit of constitutional morality is not only limited to adhering to the constitutional provisions in the literal sense but is to realize the goal of the Constitution, which is a socio-juridical scenario providing a platform to reveal the full personhood of every citizen, for whom and by the will of whom the Constitution exists.[5] Conscience is, therefore, a step in the progress of the morality of man. It is an internal rational capacity that bears witness to our value system.[6]

In other words, freedom of conscience means that no man except the individual himself has any right or authority to dictate to him what shall be his philosophical or belief system. It means that the right to be free to think and believe as one wants without the imposition of official coercive power over those beliefs.[7]

Even though the freedom of conscience pertains to the moral autonomy and judgment of man, deprived of any regulation, prescription or interference by law, it cannot be enjoyed completely. Such freedom cannot be enjoyed to the detriment or enjoyment of similar freedom of others. The self, which determines his own faith and belief system must in like logic oblige himself morally to others, enjoyment of similar faith and belief system. Also, constitutionally such freedoms are subject to public order, morality and other provisions of Part-Ill of the Constitution.[8] The lack of observance of such conduct that is, enjoying constitutionally guaranteed freedoms while accommodating the rights and interests of others has lately been on a rise in India. The institutions that wield power are becoming increasingly ignorant of the spirit of the Constitution, its conscience. In this paper, we therefore, determine to understand the conscience and the morality of the Indian Constitution and the abuse of powers by the major institutions in our country which has led to the erosion of the conscience of the Indian Constitution.

FUNDAMENTAL RIGHTS: CORNERSTONE OF INDIAN CONSTITUTION

Conscience is the innermost thought or belief that guides and guards the actions of an individual, an institution or any other fundamental aspect.[9] The Preamble is the 'Identity Card' of the constitution of any country. It is the extract or brief of the constitution. Conscience is more internal, near to soul. Constitutional Conscience should be the Fundamental rights or if expanded, it should also include Directive Principles of State Policy.[10] Fundamental rights are nothing but natural rights. These are based on the primary instincts of human beings, as shaped by their inherent perception of what is right and what is wrong.[11] These rights are universal and inherent in every human being. The first corollary of this theory is that these rights, being inherent in human beings, existed even before the evolution of the state.

Fundamental rights are not granted by the state or legislature but are natural rights of human beings and have been recognized by the state as fundamental but not absolute, and the power of the legislature is subject to these rights. Most of these fundamental rights under Part 3 of our constitution are natural law rights. They are the irreducible, minimum conditions for the free existence of a man.

While overruling an earlier decision of the Supreme Court in Golak Nath v. State of Punjab (Golak Nath),[12] which held that constitutional amendments cannot impinge on fundamental rights, Keshavandana Bharati left the door open to a judicial view on whether any amendment to a fundamental right can be said to amend the basic structure. With a hearing that lasted over 6o days, eleven different judgments pronounced, an 8oo-odd page decision, along with Chief Justice Sikri’s controversial “View by the Majority”, confusion over the interpretation of its ratio continues to date.[13] In Keshavandana Bharti v. State of Kerala,[14] the Supreme Court observed-

“Fundamental Rights and the Directive Principles constitute "conscience, of the Constitution". The Constitution aims at bringing about a synthesis between 'Fundamental Rights' and 'Directive Principles of State Policy' by giving to the former a place of pride and to the latter a place of permanence, together they form the core of the Constitution. They constitute its true conscience and without faithfully implementing the Directive Principles it is not possible to achieve the welfare State contemplated by the Constitution.”[15]

The 6 fundamental rights[16] recognized under the Constitution of India[17] are:

• Right to Equality- Right to Equality ensures equal rights for all the citizens. The Right to Equality prohibits inequality on the basis of caste, religion, place of birth, race, or gender.[18]
• Right to Freedom- These rights are freedom of speech, freedom of expression, freedom of assembly without arms, freedom of movement throughout the territory of our country, freedom of association, freedom to practice any profession, freedom to reside in any part of the country.[19]
• Right against Exploitation- Right against Exploitation condemns human trafficking, child labor, forced labor making it an offense punishable by law.[20]
• Right to Freedom of Religion- It guarantees religious freedom and ensures secular states in India. The Constitution says that the States should treat all religions equally and impartially and that no state has an official religion.[21]
• Cultural and Educational Rights- This protects the rights of cultural, religious and linguistic minorities by enabling them to conserve their heritage and protecting them against discrimination.[22]
• Right to Constitutional remedies- This ensures citizens to go to the supreme court of India to ask for enforcement or protection against violation of their fundamental rights. The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to the affected individual.[23]

These Fundamental Rights are considered as basic human rights of all citizens, irrespective of their gender, caste, religion or creed, etc. These sections are the vital elements of the constitution, which was developed between 1947 and 1949 by the Constitution of India. The erosion of constitutional conscience through amendment of fundamental rights began from the case of Sankari Prasad v Union of India[24] where the question of amendment of fundamental rights began. Then in the case of Sajjan Singh v State Of Rajasthan[25] where this question was considered and finally in I.C. Golaknath v State of Punjab[26] where the dissenting opinions gained importance. Finally, in the case of Keshavandana Bharti v State of Kerala[27], the basic structure doctrine was proposed and the fundamental rights under part 3 of the Constitution of India were proposed.

DIRECTIVE PRINCIPLES OF STATE POLICY: CONSCIENCE OF THE INDIAN CONSTITUTION

Part IV of the Indian Constitution talks about the Directive Principles of State Policy (hereinafter, DPSP). Article 36 to 51 contains the DPSP. The idea to have such principles in the constitution has been borrowed from the Irish Constitution. The “Instruments of Instructions” contained in the Government of India, Act 1935 have been incorporated in the Constitution of India, 1950 as Directives Principles of State Policy. The Constitution makers incorporated this part in the Constitution with a view to achieving amelioration of the socio-economic condition of the masses. Today we are living in an era of the welfare state[28], which seeks to promote the prosperity and well-being of the people. The Directive Principles strengthen and promote this concept by seeking to lay down some socio-economic goals, which the various governments in India have to strive to achieve.

Directive principles obligate the state to take positive action in certain directions in order to promote the welfare of the people and achieve economic democracy. These principles give directions to the legislature and the executive in India as regards the manner in which they should exercise their power.[29]

DPSP are non-enforceable in nature. Article 37 of the Constitution states: “The provisions contained in this Part shall not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” The reason behind the legal non-enforceability and non-justiciability of these principles is that they impose positive obligations on the state. While taking positive action, government functions under several restraints, the most crucial of these being that of financial resources. There’s an obligation on a state that it has to make laws and use its administrative machinery for the achievement of these Directive Principles.

IGNORANCE OF DPSP: AGAINST THE SPIRIT OF THE CONSTITUTION

DPSP is often recognized as the conscience of the constitution but these significant principles were initially ignored by the Supreme Court while interpreting various socio-economic rights. It was recognized only after the landmark verdict in the Keshavandana Bharati’s case (1973) that the apex court realized and to promote, the values underlying Directive Principles.

In Keshavandana Bharati v State of Kerala,[30] J. Hegde and J. Mukherjee observed:

“The Fundamental Rights and Directive Principles constitute the conscience of the Constitution... There is no antithesis between the Fundamental Rights and Directive Principles...and one supplements the other.”

J. Shelat and J. Grover observed in their judgment:

“Both parts III (Fundamental Rights) and IV (Directive Principles) .... must be balanced and harmonized... then alone the dignity of the individual can be achieved... They were meant to supplement the other.”

In the case of State of Madras v Smt Champakam Dorairajan,[31] the bone of contention was Articles 16[32] & 46. The Supreme Court totally rejected the State’s justification for Caste’s based Reservation under Art. 46[33] on the ground that DPSPs are non-enforceable in nature and there is no legal sanction to them.

In the case of Mohd Hanif Qureshi v State of Bihar,[34] Cow slaughter was prohibited and banned under Article 48[35] by the state. The apex court rejected the state’s contention by justifying that, “… a harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights.”[36] In this case, the Supreme Court ignored the implementation of DPSP by giving primacy to Fundamental Rights.

FAILURES IN THE IMPLEMENTATION OF DIRECTIVE PRINCIPLES

• As per the Human Development Report (HDR) 2o16, India ranks 131 out of 188 countries. It is based on the indices for life expectancy, educational attainment, and per capita income.[37] Apart from the cultural and social factors which prevent women from engaging in economically productive activities outside the household, the lack of education restricts them from participating in economic activity.
• As per the 2016 Global hunger index report of the Food and Agricultural Organization, India ranks 97^th among 118 countries. In the index, all Indian States are at a “serious level of hunger”.[38]
• As per the Environmental Performance Index (EPI) 2019, India is ranked a disappointing 177^th out of 180 countries.[39]
• The National Rural Employment Guarantee Act (NREGA), aims at better livelihood security of households in rural areas of the country by providing at least 1oo days of guaranteed wage employment.

“The NREGS could be the world’s biggest social security initiative. But lack of accountability and transparency can reduce it to mere political rhetoric. Worse, it can bankrupt the government.”[40]

After analyzing various cases and instances, it shows that we have failed the spirit of the Constitution. Even after constitutional provisions, these significant tasks remain unfulfilled. Unfortunately, our public institutions (legislature, executive and judiciary) are not concerned about giving effect to directive principles.[41]

‘A constitution may indicate the direction in which we are to move, but the social structure will decide how far we are able to move and at what pace.’[42] wrote Andre Beteille.

The Constitution of India is an organic or living document. Its spirit, ideology and conscience rendered by our founding fathers must be respected by the people of India. Its principles and intentions should be reflected in society. The success of any political/democratic system is inherent in the efficiency and coordination of its institutions and their functions. The law-making, enforcing and adjudicating all are important in governance but their balance and sense to give respect to each other bring good governance. If the institutional crisis comes up it can be handled and managed by each other’s understanding. But if it intensifies and they fight to surpass each other while humiliating each other – that leads to political decay.

Written Constitution, Independence of Judiciary, Rule of law, Separation of power, Free & fair election, Fundamental Rights, DPSP, Decentralisation of power, Basic Structure, etc. These are the principles and conscience guaranteed by our Constitution that must be revered and protected by the organs of government i.e. Legislature, Executive and Judiciary.

We should conclude our project by quoting Dr. B.R. Ambedkar,

“I feel that the Constitution is workable, it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.”

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