PEOPLE AND THE CONSTITUTION

Author(s): V.S. Deshpande

Source: Journal of the Indian Law Institute , January-March 1974, Vol. 16, No. 1
(January-March 1974), pp. 1-10
Published by: Indian Law Institute

Stable URL: https://www.jstor.org/stable/43950310

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 JOURNAL OF THE INDIAN LAW INSTITUTE

VOLUME 16 JANUARY-MARCH 1974 Number 1

PEOPLE AND THE CONSTITUTION

VS. Deshpande*

A CONSTITUTION is enacted and laws are made by men for the ac

ment of objectives. The real value of constitution and law would, the
depend on the extent to which they are successful in achieving these ob
And yet constitution and law are rarely considered from this angle
the expounding of a constitution and interpretation of laws have b
specialised subject of interest only to small groups of technicians - prim
lawyers and judges and secondarily to legislators, politicians and civ
vants. Initially, the concept of a constitution was very inspirin
American Declaration of Independence, 1776, declared the achieveme
"life, liberty and pursuit of happiness" as the supreme objectives and
the most permanent verity for all times in the following words :

To secure these rights governments

are instituted among men.

The democratic state is based on this basic concept that the st

established for the preservation of the rights of man. Man does no
for the state. It has, however, happened in history that everyone is
about the declaration of noble sentiments but their implementation
kept to the original intent. Even when the American Constitution a
came to be framed, the basic ideals of "life, liberty and pursuit of happi
were changed into the due process clause which protected "life, liber
property". The substitution of "pursuit of happiness" by "propert
the first indication of the dichotomy between theory and practice
American Constitution makers were influenced by the theory of pr
propounded by John Locke. According to Locke, property could be
fied because it was created by man with his own labour and effort. L
not only created property but also determined its value. The proport
labour in the value of economic goods was high enough for Locke
that "of the products of the earth useful to the life of man nine-tenths a
effects of labour." In that sense, Locke's economic philosophy liber
the enterprise of the individual from the restrictions of force and custo

♦ M.A., LL.M. (Nag.), LL.M. (Stanford), Judge, Delhi High Court.

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2 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 : 1

was quite progressive. On the other hand, Charles Beard has

personal motivations of the more prominent among the Amer
tution makers and found that a comparatively few men of p
become powerful and intended the protection of property as the c
of framing the American Constitution. In that land of affluence a
ted opportunity in those early days the end was to develop and
vidual enterprise. The American Supreme Court, therefore, d
essentially procedural concept of due process to include substa
tions on the powers of the legislature and the government m
interests of contract, business and property. A century and
Locke's writings, the economic facts were reversed and, as R.H
shown1, much of property had become functionless. It served
per its owners without contributing to the social good. Econo
between landlords and tenants, money lenders and borrower
and employees, denied equality of opportunity to the masses an
mental rights of the individual, in practice, came to mean only th
of the interests and property of the privileged individuals.
This imbalance between the ideal and the actual was sough
rected in Britain by the rise of Fabian socialism. It was d
Sidney and Beatrice Webb, H.G. Wells, G.D. H.Cole, William B
Bernard Shaw. In India, Mahatma Gandhi with his emphasis o
grity of the village communities emphasised that property o
trustees for the community as a whole. Jawaharlal Nehru, h
an advocate of democratic socialism. He was the leader not onl
people who framed the Constitution of India but also represen
towards which Indian society was destined to advance. Hi
leanings symbolised the disenchantment of the masses with t
between the libertarian ideals and the actual inequality in
significant that the feeling that the development of individual fr
be tempered with the attainment of social and economic justic
spread almost all over the world. It has been estimated by Karl
that soon after the end of World War II new constitutions we
about fifty-odd countries.2 The framing of the Constitution
thus, a part of a world-wide movement. Among the causes f
these constitutions, the following trends are discernible. First
Germany, Italy and Japan had suffered an eclipse of liberty b
totalitarianism. After the defeat of the dictatorships, the pe
to break away from them and strengthen the protection of l
new constitutions. Secondly, some constitutions were necessitated
changes in the location of political power sometimes caused by
But, the most significant cause from our point of view was th

1. R.H. Tawney, The Acquisitive Society (1921).

2. See, Karl Loewenstein, Political Reconstruction (1946).

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1974] PEOPLE AND THE CONSTITUTION 3

of independence and statehood by countries like

Constitutions marked the culmination of a long-dr
freedom and independence. But the need to balan
of the people with economic equality and social jus
versally among all these constitutions. All of them
state into the three great organs - the legislature, th
ciary and almost all of them embody Declarations
in addition to the classical libertarian freedoms f
also professed the ideal of social justice and equalit
There is a fundamental duality among these mo
tween freedom and equality, property and social
prise and state planning, in short, between the i
interests. But there should be no real conflict betwee
individual and the interests of the society. The i
rights. The framers of the Indian Constitution h
both these sets of rights and interests to be fund
former could be enforced at the instance of the in
mentation of the latter had to wait till the state e
tion as enforceable in the courts as the individua
therefore, separated. The former became the fun
latter the directive principles of state policy. The
and the relative importance attached to them by the
tion was, however, not kept in doubt by the Cons
inception of the process of constitution making
objectives resolution. At the end of the process o
they enacted the preamble to the Constitution, t
the preamble) fully keeping to the beginning
resolution). These statements of the objectives un
the Constitution had four principal heads. Only
the rights of the individual. These were limited
liberty of thought, expression, belief, faith and wor
claimed the interests of the society, namely, just
political, equality of status and opportunity, and
dignity of the individual and unity of the nation.
whole and as a key to the understanding of the Co
to "Constitutional liberty and concept of justice"
the philosopher John Rawls ąs follows ;

One may distinguish the various kinds of cons

as liberty of the person, liberty of conscience
thought, political liberty, freedom of movement,
opportunity. It is characteristic of these libert
tional democracy that they are equal liberties; in r
liberties, no person is favoured over another...
[T]he concept of justice is, therefore, the

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4 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 : 1

ground for a common public understanding of the basis o

these fundamental liberties.3

The movements for the implementation of these strands of th

embodied in the Constitution converge into litigation which is de
by the courts. The courts are the apex of a democratic legal s
The Bar, the Bench and the academic lawyers - all contribute to the
ment of thought which is enforced in practice by the decisions of the
In the interest of a well-balanced concept of law, there has been
from the former positivist concept expressed by Austin in England
a sociological concept propounded by Roscoe Pound in the United
The Society of Public Teachers of Law of the United Kingdom pr
a memorandum in 1963 for the Committee on Higher Education cha
Lionel Robbins. It emphasised that the jurist should be concerned not m
with the words of the rules but ais o with their purposes and effects ; n
with the letter of the law but also with the social effects which create law
and which law seeks to control - within human nature itself. This trend was
carried further in March 1971 in the United Kingdom by theOrmrod Com-
mittee on Legal Education who also recommended that the syllabus for the
basic law degree should consist of not less than two-thirds of law proper and
the rest of non-legal subjects suchas social sciences allied to law. In this res-
pect, the balance struck by our Constitution in 1950 between the rights of the
individual and the needs of the society is based not only on past experience
but is also far-sighted enough to take note of future trends. The Constitu-
tion is, therefore, not only a legal but also a social and political document.
Its legal aspect, namely, the fundamental rights, is enforceable by the in-
dividual by writ petitions and otherwise in the courts. Its social aspect can,
however, be implemented only by legislation to carry out the objectives of the
directive principles of state policy. It is the duty and responsibility of the
courts and the lawyers to give reality to both these parts of the Constitution.
If, for instance, the fundamental rights are regarded as the more important
part of the Constitution the whole of which is fundamental law, then the
counterbalancing part, namely, the directive principles of state policy, will
be eclipsed pro tanto . It is true that the directive principles, by themselves,
are not enforceable but legislation made to implement them is as enforceable
as are the fundamental rights. What is the position of such legislation
under the Constitution? When this question came up before the courts in
respect of land reforms legislation, the answer which occurred to most law-
yers and the courts was that such legislation could not prevail against the
fundamental rights, if it was inconsistent with them. But inconsistency it-
self is not an absolute concept. It depends on the relative importance
which is given by the lawyers and the courts to the fundamental rights and the

3, John Rawls, Constitutional Liberty and the Concept of Justice, in Carl J.

Friedrich and J.W. Chapman (ed), Justice ( Nomos VI) 99-100 (1963).

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1974] PEOPLE AND THE CONSTITUTION 5

socio-economic legislation made under the directi

At the time the Constitution was framed, the
was itself largely elitist. The masses were guid
leaders. The leaders of society came from the
classes. It was theoretically realised by them,
tion, that the right of property had two aspects,
the social. Prime Minister Nehru represented t
of the Constitution makers that full compensa
vidual acquisitions of property; but the amou
for transfer to public ownership of a class or c
economic reforms would have to be left to th
into account the circumstances of each case and the social no less than
the individual interests. But putting an ideal into practice is not always
easy. Thought processes change slowly. Neither the political leaders nor
the lawyers and the courts were, therefore, fully prepared to carry out this
distinction into practice. By the initial decisions of the courts only one
part of the Constitution, namely, fundamental rights, came to be fully alive.
They were the life of the Constitution. The practical value of the Consti-
tution lay in the enforcement of the fundamental rights. The preamble and
the directive principles of state policy tended to become somewhat like mere
pious ideals. For, their teeth lay in the statutes made by Parliament for
their implementation. The validity of these statutes was judged by the
lawyers and the courts, initially, entirely on the anvil of the fundamental
rights. Many of the statutes failed to pass the test and they or parts of them
were declared invalid. To that extent, the social interest part of the Cons-
titution represented by the directive principles of state policy became unreal.
There was a hiatus between the law in theory and the law in practice. But
in the last analysis, the Constitution is "a vehicle of the nation's life" in
the felicitous phrase of the late President Woodrow Wilson of the United
States. It is the people who run the vehicle. The vehicle cannot run the
people. Both must move together. The rising expectations of the masses
in India (as elsewhere in the world) rapidly transformed the nature of Indian
democracy from an elitist one to a mass participating democracy. The
popular meaning of the Constitution had to be asserted against the elitist
meaning put upon it by the lawyers and the courts. This process took the
form of successive amendments to article 31 which guarantees the pay-
ment of compensation for the acquisition of property by the state. The First
Amendment of the Constitution inserted article 31 A to make it clear that the
acquisition by the state of "any estate" and the extinguishment or modifica-
tion of certain rights in public interest by legislation was not to be declared
invalid by the courts as being contrary to the fundamental rights conferred
by articles 14, 19 and 31. Article 3 IB (also then inserted) absolutely protect-
ed any statute specified in the ninth schedule of the Constitution from chal-
lenge on the ground that the statute abridged or took away any of the fun-
damental rights. The Fourth Amendment of the Constitution further clarified

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6 JOURNAL Of THE INDIAN LAW INSTITUTE [Vol. 1 6 : 1

that adequacy of compensation for the acquisition of any property whatever

was not to be justiciable. The Seventeenth Amendment broadened article
31 A. Lastly, the Twenty-fifth Amendment of the Constitution inserted
article 31C by which legislation giving effect to the policy of the state towards
securing the principles contained in clause (b) or (c) of article 39 of the
Constitution was to be beyond judicial review. This, as interpreted by the
bench of thirteen judges in Keshavanand Bharati v. State of Kerala ,4 means
that if a legislation has a nexus with the implementation of article 39(6) or
39(c) then it has to be regarded as valid by the courts. The principle under-
lying these constitutional amendments is to give practical value and reality
to the more important directive principles of state policy and to bring them
on par with the fundamental rights. This could be done only by declaring
legislation made under these directive principles to be as good as the
fundamental rights themselves. The result so brought about is not, either
inherently or in practice, an inconsistent one. For, in principle, there can
be no inconsistency between two parts of the same constitution. This is
a common sense way of looking at things. Whether it is a letter or a speech
or a document or an Act, one has to look at it as a whole. Ordinarily, no
author, speaker or actor intends to have inconsistent parts in his writing,
speech or action. A fortiori , the Constitution makers could not be accused
of making the directive principles of state policy inconsistent with the funda-
mental rights. On the contrary, their effort was in tune with the movement of
political thought all over the world seeking to harmonise the fulfilment of the
individual right with the social good. This common sense approach in
current controversies should also be reflected in the interpretation of the
constitution and statutes. When the legislature enacts a statute it often
leaves its implementation, or the implementation of a part of it, to rules to be
made under the statute. The legislature, thus, declares not only the validity
of the provisions of the statute but also that the rules made thereunder shall
be valid. If this simple principle is applied to the statutes made to effec-
tuate the directive principles of state policy, there would be no difficulty in
regarding them as having the same validity as the fundamental rights. For,
by the intention of the Constitution makers and of Parliament they were to
be a part of the same constitutional scheme of which the fundamental
rights are a part.
It has been truly said that "the actual value of constitutional order can
be tested only in the wear and tear of the political processes." The develop-
ment of the Constitution of India during the last quarter of a century bears
this out. The individualism in the fundamental rights as well as the demo-
cratic socialism in the directive principles of state policy and the laws made
thereunder were intended to be real and living parts of the Constitution
with equal practical value. While the practical value of the former was
obvious and was, therefore, developed early by the courts, the reality and the

4, (1973) 4 S.C.C. 225.

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1974] PEOPLE AND THE CONSTITUTION 7

practical value of the latter naturally took some t

the nature of a participating democracy for the peopl
whenever the leaders of thought fall short of their ex
therefore, stepped into the gaps left by the elite in t
Constitution. The elite and the people have togethe
dual and the social parts of the Constitution and made
equally living. The practical value of the Constituti
and of the socio-economic laws heralding progres
been both successfully asserted so that no imbalance m
of the Constitution may become unreal or valueless in
So far so good. But what about the future ? H
the Constitution and the legislation made to implemen
to the people? The answer is found in the Constitu
enacted by Parliament, i.e., by the representative
preamble of the Constitution makes it different. I
INDIA... give to ourselves this Constitution". Th
Constitution also says "WE THE PEOPLE of the Un
and establish this CONSTITUTION". Neither of thes
actually made by the people as a whole. In fact, th
made by the representatives of the people. The obj
at the beginning of the work of the Constituent Asse
it was passed by the Constituent Assembly. But the
end of the work of the Constituent Assembly delibera
people of India and not their representatives, the
tion. A preamble is said to be the key to understandin
tution. A fortiori, the words "WE, THE PEOPLE" a
ing not only the Constitution but also the pream
most important and significant part of the preamb
Firstly, they harp back to the basis of a democrati
the theory of social contract. They emphasize the b
agreement of all the people which has brought ab
John Rawls in his new book5 has also develope
following lines. We are most likely to arrive at ju
of society if we make an effort to reach an agreemen
are to be governed thereby. This is why every person
formulation of these principles. For, by accepting
agreement, each of them will assume a duty to
flowing from this agreement. This social contract trad
ly in the Declaration of American Independence ("
the governments are instituted among men") and i
U.S. and the Indian Constitutions beginning wit
PEOPLE".
Secondly, the emphasis on the involvement of the people as a whole in
the Constitution operates as a warning against the monopolisation of the

5. John Rawls, A Theory of Justice (1971).

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& Jo U RS AL ÖF The INbiAŃ LA W INSTITUTE (Vol. lé : í

interpretation of the Constitution and the statutes made thereunder by the

eiite groups. What Thomas Reed Powell called "constitutionalysis" and
"constitutionology" to brand the tendency of the lawyers to make the cons
titution a speciality of the technicians must not be allowed to overshadow
what Karl Lowenstein would call "the ontology of the constitution". This
is why it has been repeatedly said that the constitution is primarily a political
and social document and not merely a legal document. It is meant to be a
living and a real constitution affecting the life of the people as a political and
social force. It is a legal document only in the sense that many parts of it
are enforceable and justiciable in law courts at the instance of an individual
or the state. But it is not a legal document in the sense that only expert
groups like lawyers and judges are concerned with it.
Thirdly, the words "WE, THE PEOPLE" signify not only the people of
India who existed on the 26th of January, 1950 when the Constitution cam
into force but the people of India as a continuing and eternal entity
Whenever we read the Constitution we ought to feel that we are the author
of the Constitution as the Constitution is framed by us as political entity
and is meant for us. A brilliant observer of the working of the American
Constitution6 offers the following interpretation of the words "WE, THE
PEOPLE" with which the U.S. Constitution begins:

I like to think that what Marshall did was offer us, the people of
the United States, in whose name the Constitution was written, the
opportunity to sign it, by adding our names to those of the
Convention. This may be fanciful, but it's none the worse for
that. It is a metaphor, and "A world ends," MacLeish says,
"when its metaphor has died."7

Our Constitution like the U.S. Constitution is meant to inspire the people.
We seek this inspiration from it by associating ourselves with the making
and development of the Constitution. Of course, this is only a thought or
an idea. It may not serve everyone's interest. But as John Stuart Mill
said long ago, "one person with a belief" has been rated "a social power
equal to ninety-nine who have only interests".8 It is under such inspiration
that the Declaration of American Independence said "all men are created
equal" and Lincoln said of the founding fathers that "they meant to lay down
a standard maxim for free society... even though never perfectly attained".
Lastly, these key words of the Constitution bring out the eternal verity
of the identity of the interpreters of the Constitution with the people as
a whole. The Constitution exists for the welfare of all the people. It i
for them to decide what they want to achieve from the Constitution. It

6. See, Charles P. Curtis, The Role of the Constitutional Text, in Edmond Cahn
(ed.), Supreme Court and Supreme Law 64 (1954).
7. Collected Poems 173 (1952).
8. J. S. Mill, Utilitarianism , Liberty and Representative Government 183 (1910,
Everyman ed.),

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 1974] PEÒPLE AND THE CONSTITUTION $

embodies their aspirations and must be cons

meaning which the interpreters of the constitu
tution cannot, therefore, be divorced for long fr
sense of the constitution which is formed by the con
public opinion. There is no reason why the legal mea
should not in the long run coincide with its soci
For, the judges and the lawyers who interpret the co
of their times and a part of the society in whic
afford to be out of tune with the larger entity as to
ultimate aims which are embodied in the constitu
stated9 that without encroaching on the sphere of
law by (a) common sense ( b ) legal principle,
further stated:

We are here to serve the public, the common ord

man. He has no great faith in theories and he
What he wants and will appreciate is an expla
terms which he can understand. Technicalitie
all very well among ourselves- a system of sho
the end if you cannot explain your result in simple...
(language) there is probably something wrong with it.
Sometimes the law has got out of step with common sense
( Communis error facit jus). We do not want to have people
saying : "If the law says that the law is an ass". If they say that
about a statute our withers are unwrung."10

Let us take the example of the fundamental right of freedom of speech

which is regarded as the greatest human right and as the very soul of demo-
cracy. The dimensions of this right and its development in every society
are the result of the growth of public opinion. The decisions of the courts
ultimately reflect rather than mould the public values in this respect.11 At
any rate, the courts are only one of the opinion-making bodies. It is neither
the only one nor the most representative one. This is why in times of
emergency the needs of the state and the public opinion concur in taking a
somewhat narrow view of this great liberty and the courts feel the same
influences also like the rest of their fellowmen.12 The courts have reflected
the development of public opinion because a progressive change is the life
of every society in the modern world. This truth was expressed by Lord

9. See Lord Reid, The Judge As Law Maker, XII Journal of the Society of
Public Teachers of Law 22 at 25 (1972).
10. Ibid .
1 1 . Paul L. Murphy, Meaning of Freedom of Speech - First Amendment from
Wilson to F.D. Roosevelt (1972).
12. Lever sidge v. Anderson , (1942) A.C, 206.

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10 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 : 1

Sumner in Bowman v. Secular Society , Limited 13 in the following words:

The words, as well as the acts, which tend to endanger society

differ from time to time in proportion as society is stable or
insecure in fact, or is believed by its reasonable members to be
open to assault.... After all, the question whether a given opinion
is a danger to society is a question of the times and is a question of
fact.

Great men have become leaders of the people even though they have
come from the elite. For, they deeply felt the necessity of understanding
the aspirations of the people at large and of moulding the government to
carry out the popular aspirations. The government cannot act except through
legislation and legislation cannot be enacted by Parliament except in accor-
dance with the Constitution. This is how the aspirations of the people are
transmitted from the government to Parliament and then into the consti-
tution itself. The policies by which the constitution has been moulded to
reflect popular aspirations have been justified by history. In the history of
the United States, the popular policies which modified the constitutional
interpretation were President Woodrow Wilson's "New Freedom", President
Theodore Roosevelt's "Square Deal", President F.D. Roosevelt's "New
Deal", President Truman's "Fair Deal" and President Kennedy's "New
Frontiers." The democratic socialism spelt out in the preamble and the
directive principles of our Constitution is meant to provide the context in
which the fulfilment of the fundamental rights has to be achieved. It is
this harmonious development which will give life to every part of the Consti-
tution for the benefit of the people as a whole. It is this prospect which
underlies the promise of the future development of the Constitution for all
of us and this sums up the practical value of our Constitution and the laws
made under it.

13. (1917) A.C. 406 at 466-7.

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