One recurrent criticism of the Indian constituent assembly over the years has been that since it was not elected on the basis of universal adult franchise, it did not represent the ideals of the Indian populace in all its entirety. A few members, imposing limits on political powers of  generations of people to come, the very people which it claims to derive its legitimacy and powers from appears to be debilitation of democracy, which further begs the question, is the Indian constitution undemocratic? 

This proposition has serious ramifications on the very credence of the Constitution. This feature of a constitution placing limits on the powers of the state is known as constitutionalism, and by delineating certain fundamental rights which the state could not infringe upon, the constituent assembly affirmed its unwavering belief in the concept of constitutionalism. This belief has been perpetuated for eternity by the Indian judiciary after it propounded the basic structure doctrine in the celebrated Keshavnanda Bharati case.

Hence, the crux of the given proposition lies in the fact whether Constitutionalism defeats the purpose of democracy?

Why Constitutionalism?

Why exactly then, did members of the constituent assembly, champions of democracy and liberal ideals, vanguards of people’s rights opt for a constitution built on the lines of constitutionalism?

Colloquially speaking, the state is the biggest bully in the backyard against which the interests of the citizens have to be safeguarded. This is primarily achieved by laying down certain non negotiables that the executive and the legislature cannot transgress upon. The fundamental rights enshrined in part three of the constitution are the quintessential example of these non negotiables.

Furthermore, in a pluralistic democracy like India, it is indispensable that the rights of the minorities-  religious, sexual, cultural, linguistic and political, etc. are safeguarded. By placing limitations on the powers of the government, the Constitution ensures that the rule of democracy does not emanate into the tyranny of the numerical majority resulting in subjugation of the minorities in any way or form, when any form injustice is meted to a citizen, it is the constitution that weeps.

Constitutionalism also renders a stability to the polity, insulating it from the volatility of the whims and fancies of the government of the day. If the very foundation of the state’s administration is altered every time a new government assumes office, effective administration would prove to be an elusive dream.

Denouement

In this author’s view, contrary to the notion of constitutionalism being undemocratic, it ameliorates the quality of the democracy  by ensuring that the interests of groups unrepresented in the government of the day are protected and upheld.

Perhaps, this gives rise to a conundrum, perhaps even a real life example of a Protogaoras’ paradox since it can be argued that by limiting the powers of the government and the democratic policies we tacitly admit to a distrust in the efficacy of the functioning of a democracy. But this author firmly believes, this further accentuates  the longevity of a robust and a vibrant democracy by papering over a potential loophole that inadvertently follows from a democratic set up i.e. tyranny of the majority.

Who reigns Suprme in the Indian Democracy?

An inquisitive question at this juncture would be who then isthen, is the real sovereign in the Indian democracy, while various intellectuals and jurists have voiced various opinions, this author’s views with respect to this subject are in consonance to the views expressed in the write up which can be accessed by clicking here.

The Dead Hand of the Past

The argument of the credibility of Constitutional limitations on the state waning as a result of being enacted by a constitent assembly which has long left for its heavenly abode is known as the dead hand of the past, hence the title of the blog.