It took many centuries for men to comprehend that the good society in which we possessed secured rights was conditioned on the inhibition of power holders, whatever the legitimacy – factual, religious, or legal – of their social control. Later, this purpose appeared to be served best by articulating the restraints society wished to place on the power holders in the form of a set of fixed rules -‘the constitution’ – limiting the exercise of governmental power. So, the telos of any constitution in the ontological sense must be seen in articulation of devices to control the governmental power.
The desire to eloquently formalise the basic ordering of state society in a written document i.e. a constitution, arose as late in the Puritan revolution against the claim of absolute and unlimited authority of Parliament. It was, however, in the 17th century and more tenaciously, the 18th centuries that, under the powerful stimulation of the social-contract concept, the term ‘constitution’ assumed its modern connotation. It came to signify a single document, containing the fundamentals of a state society and designed to curb the arbitrariness of a single power holder – at that time usually, though not invariably, an individual, the absolute monarch, and to subject him to restraints and controls. For this purpose, to use the verbal metaphors of the period, the Leviathan was tamed by splitting his heretofore monolithic sovereignty into different segments or departments, to each of which a specific state activity was assigned. This was the principle of the differentiation or specialisation of state functions.
To this was added a second correlative; each department should exercise the function assigned to it independently from the others; this was the principle of functional independence. The organic unity of the state then was achieved by combining these specialised and autonomous power holders in joint action for the formation of the will of the state. All these arrangements, cautiously planned in advance, were then integrated in a single document, enacted with specific solemnity, and called the ‘fundamental law’ the ‘instrument of government’ or the ‘constitution’ and this idea of limited power was called ‘constitutionalism.’
Normative, Nominal and Semantic Constitution
With the drastically changed role of the written constitution, a new approach to the classification of constitutions was required. This approach instead of analysing substance and content focuses on concordance of actuality of the power process. It proposes segregation of constitutions as to their normative, nominal and semantic character.
A constitution is what power holders and power addresses make of it in practical application. To a large extent, the paramount issue of whether the specific power arrangement of a constitution becomes effective depends on the socio-political environment it is destined to serve. To be a living constitution, a constitution requires a climate conducive to its comprehension. It is not enough that a constitution be valid in the legal sense; to be real and effective, it must be devotedly followed by all; it must have integrated itself into the society. If this is so, a constitution may be called a normative one, i.e. it provides norms and its norms govern the political process, or the power process adjusts itself to the norms.
Normativity cannot be taken for granted; it requires practical corroboration. Even though legally valid, a constitution that is not lived up to in practice lacks existential reality. What a nominal constitution implied is that existing socio-economic conditions such as lack of political education and training, absence of an independent middle class and other factors are for the time being against the complete concordance of the constitutional norms with the exigencies of the power process. The factual state of affairs does not, or not yet, permit the complete integration of constitutional norms into the dynamics of political life. Perhaps the adoption of a constitution is untimely, but the hope exists, supported by the will of power holders and power addressees, that sooner or later the reality of the power process will conform to the blueprint.
When the power configuration is frozen in the interests of the powers, be it an individual person (dictator), a committee, an assembly, or a party, it may be described as a semantic constitution. Instead of serving to limit political power, the constitution becomes the tool for the stabilisation and perpetuation of the grip of the factual power holders on the community.
Whether a constitution is to be characterised as normative, nominal, or semantic cannot be decided, as a rule, from its text alone, particularly since constitutions are usually silent on some of the crucial aspects of the power process, such as political parties and plural groups. In each case insight into the realities of the power process is required. The nominal and the semantic always pretend to be normative.
The Constitution of India, drafted in the background of a long nationalist movement, incorporated the fundamental policy and value choices of a normative constitution; the most significant was the idea of constitutionalism. However, the working of the Constitution in these seven decades has proved that many power controlling devices are either loose or ineffective which provides the government in power the opportunity to turn it into a semantic constitution.
Semantic Tendencies of Indian Constitution
The proclamation of Emergency (1975) witnessed an extraordinary phase that not only threatened the existence of constitutionalism in India but also its legal and judicial system. The power of the executive was enhanced overnight and eventually turned into an authoritarian regime, which not only curtailed the freedom of citizens but also paralysed the independent judiciary. Supersession of judges, arrests and detentions of political leaders, student union leaders and eminent personalities without trial shocked the entire nation.
Enactment of Maintenance of Internal Security Act and Defense of India Rules silenced every possible opposition. Imposition of family planning programmes, execution of birth control methods like forced sterilisation and vasectomy witnessed the invasion of governmental power into the personal lives of common people. The censorship of the press to curb the democratic voices was another feature which our government possibly learnt from its alien predecessor.
The other tendency to disregard constitutionalism was reflected in the exercise of power under Article 356 popularly known as ‘President’s Rule’. Being in nature an emergency and extraordinary power meant to be exercised only as a last resort, the power had more often been misused to distract the democratic and federal fabric of the constitution. A survey of use of Article 356 shows that as of now, President’s Rule has been imposed more than 100 times.
The Sarkaria Commission which analysed 75 cases of President’s Rule from June 1951 to May 1987 (1950-1954 – 3 times, 1955-1959 – 3 times, 1960-1964 – twice, 1965-1969 – 9 times, 1970-1974 – 19 times, 1975-1979 – 21 times, 1980-1987 – 18 times) found in more than 52 cases out of 75, Article 356 has been used for political rather than constitutional purposes. On three occasions, assemblies had been dissolved en masse and purely for political reasons (in 1977, Janata Party Government dissolved nine Congress-ruled assemblies, in 1980 after regaining power, Congress government in retaliation dissolved nine assemblies and in 1992, four assemblies were dissolved after demolition of Babari Mosque). This tendency continues.
Contemporary India has also witnessed the prevalence of draconian laws such as Armed Forces Special Powers Act (AFSPA) both in the North-East and Jammu and Kashmir, to protect the state against terrorism and other anti-state activities. The Indian police still functions under the colonial Police Act, 1861 which was enacted in the aftermath of the Mutiny of 1857 in order to establish a police force that would suppress dissent and any movement for self government.
The constitutional sentiments are not reflected in the legislation governing the police and hence the police remained outside the loop of prevailing democratic values. It was more known for illegal detentions, custodial tortures, extra-judicial liquidations and being perceived by many as the handmaiden of the political superior rather than as an organisation that is mandated for ensuring peace and security to the people. It apparently demonstrates that the Indian state has prioritised issues of national security, political interests and development over and above justice, human rights, freedom of speech and right to dissent – the very foundations of a democracy.
The application of colonial sedition law in post-independent India has proved to be repressive and an insolent evasion of constitutional conscience. The possibility of criminal prosecution for open criticism of the government is at odds with a profound national commitment to the principle that debate on public issues should be uninhibited, vigorous and wide-open. The sedition law does not fit in under the present constitutional scheme. In England itself, sedition law was confined as a dead letter and was formally repealed in 2009, declaring that “sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today.”
There are many other areas where the executive has demonstrated semantic tendencies viz. Ordinance making power that has been used arbitrarily and to bypass the legislature, inspite of repeated verdicts that it is a “serious constitutional infraction and abuse of the constitutional process.” Controversial Bills were transformed into money bills to bypass the scrutiny of upper house. The communal equilibrium of the country has been seriously disturbed by creating hype around issues like cow, temple or movies. It is encouraged to keep the electoral theology in circulation to deliver for the ruling party success in 2019.
The democratic constitution of our country was founded on a delicate balance of power between the three wings of the state. A constitution is expected to endure for a long time and therefore successful working of democratic institutions requires in those who have to work a readiness to learn from failures of the past, respect viewpoints of others, capacity for developing conventions and accommodation. Many things which cannot be written in a constitution are done by convention, an aspect where we perhaps failed and failed miserably. Apprehensions were voiced in the constituent assembly about the semantic tendencies, but it was observed then that “our constitution has provision in it which appear to some to be objectionable from one point or another. We must admit that the defects are inherent in the situation in the country and the people at large. If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective constitution. If they are lacking in these, the constitution cannot help the country. After all, a constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it and India needs today nothing more than a set of honest men who will have the interest of the country before them.”
(The writer is Associate Professor of Law at NLU Odisha and Deputy Registrar, Research Supreme Court of India.)