Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

the principles of the rule of law. It also incorporates the principle of separation of


powers in a parliamentary form of government.
15


The Preamble declares India to be a ‘sovereign socialist secular democratic


republic’.^16 An explicit declaration of sovereignty was imperative to show a departure


from the colonial past. However, by declaring India to be a republic, the consti-


tutional framers refused to accept a hereditary head of state even for ceremonial


purposes. The term ‘socialist’ was not part of the original preambular intent, but the


socialist bias of the Constitution is manifested in its provisions, especially in Partiv


containing DPs.^17 The commitment to adopt socialist policies has faced new chal-


lenges since the adoption of the new economic policy of privatisation, liberalisation,


disinvestment and deregulation. Although the Supreme Court has found no appar-


ent conflict between constitutional commitment to socialism and governmental


policies of privatisation and disinvestment,^18 doubts persist whether the state can


still discharge its mandatory obligations laid down in Partivof the Constitution.
19


The Constitution departed from the British policies of communal representation


and ‘divide and rule’ and established a secular polity, though this was made explicit


in the Preamble only in 1976. The judiciary has given ‘secularism’ a higher position


by declaring in theBommaicase that it is a basic feature of the Constitution,
20


meaning thereby that India can never become a theocratic state under theexisting


constitution. However, neither the adoption of the non-Western conception of


secularism,
21
nor its judicial uplifting inBommai, has been able to attain the


desired objective completely. The religious animosity between Hindus and


Muslims, the two major religious communities in India, reached its zenith in the


destruction of Babri mosque by Hindu fundamentalists in 1992 and the consequent


riots, bomb attacks and the Godhra train carnage that followed the demolition.


Despite strong judicial reminders,^22 religion has been continuously misused for


(^15) Article 50 , a DP, lays down that the ‘state shall take steps to separate the judiciary from the
executive in the public services of the state’.
(^16) The terms ‘socialist’ and ‘secular’ were inserted in the Preamble by the Constitution ( 42 nd
Amendment) Act 1976.
(^17) See also Austin,The Indian Constitution, pp. 41 – 3 ; Austin,Working a Democratic Consti-
tution, pp. 70 – 4.
(^18) Delhi Science Forumv.Union of IndiaAIR 1996 SC 1356 ;Balco Employees Unionv.Union
of IndiaAIR 2001 SC 350. See also M.P. Singh, ‘Constitutionality of market economy’
( 1996 ) 18 Delhi Law Review 272.
(^19) Surya Deva, ‘Human rights realisation in an era of globalisation: the Indian experience’
( 2006 ) 12 Buffalo Human Rights Law Review 93 at 124 – 5.
(^20) S.R. Bommaiv.Union of IndiaAIR 1994 SC 1918.
(^21) As opposed to the Western ‘anti-religion’ or ‘separation of church and state’ notion of
secularism, the Indian conception is based uponsarva dharma sambhava(equal respect for
all religions). See Shariful Hasan, ‘Nehru’s secularism’, in Rajiv Dhavan and Thomas Paul
(eds.),Nehru and the Constitution(Bombay: N.M. Tripathi Pvt. Ltd, 1992 ), p. 182.
(^22) See, for example,S.R. Bommaiv.Union of IndiaAIR 1994 SC 1918 ;Ismail Faruquiv.
Union of IndiaAIR 1995 SC 605 ;Manohar Joshiv.Nitin B.R. Patil( 1996 ) 1 SCC 169 ;
Ramesh Yeshwant Prabhoo (Dr)v.Prabhakar K Kunte( 1996 ) 1 SCC 130.


The Indian constitution in the twenty-first century 347

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