What Makes What?

The question is often asked, “Why public institutions don’t work for the betterment of public”. It is not a new one or cannot be said to be a development of some recent phenomenon in the polity. When nothing works for the betterment, we look up to the judiciary which also disappoints many times, correct me if I’m wrong. And in the end, when nothing works perfectly then we take the aid of the constitution. The Constitution, the ‘Grundnorm’ of our country is the fundamental document encoded with principles on which the entire country ought to work. So, why these institutions which inherit the authority from one of the most humanistic, egalitarian, liberal, and even secular constitution fail to fulfill the standards of it. Does it have anything to do with the establishment of institutions, the legacy they carryforward for the time prior to the establishment of this fundamental document? The Judiciary, the Bureaucracy, the institution of public utility including the Police and other security forces are no new foundations but are the product of the colonial system or the Monarchy existing before the colonial. Though after the commencement of the fundamental documents they are obliged to follow its principles but following the principles and upholding the essence of principles are two different things. To uphold the essence of fundamental principles certain other principles like the power of ‘discretion’ in administrative actions and ‘justice, equity, and good consciousness’, vested in the Judiciary work as supplements in dealing with the problems arising in administrative or judicial works.

The above-stated contentions raise further questions like; only law matters or the lawgiver matters too? This question cannot be answered in a single sentence because it can be viewed from more than one perspective. If we go as per the ‘Rule of Law’ of Dicey, it states that there should be absolute supremacy of law, equality before the law, and predominance of legal spirit. Thus, the third principle itself defines the relevance of the customs, conventions, and that the evolution of law in the society is a relevant factor along with just and equitable law. Now, taking the above question as per the Dicey’s rule of law, we can propose that not only the law but the lawgiver also matters (by the term lawgiver I mean to say the implanter, guardian, and source of law), because no matter how Just law is, it will never fulfill the need of masses if not applied with its essence. And for the lawgiver what matters most is the social-economic structure of which it is a product. If the structure out of which it is manifested is exploitative, for example, the Colonial (an impression of capitalist structure) or Monarchy (we can say feudal structure) which runs on the exploitation of people, it can never evolve the just institutions. The legacy carried forward by these institutions, even after the end of exploitation, will always reflect the exploitative consciousness with which they were established.

Now, another question arises, which I believe is, quite important while discussing the functioning of The Constitution: The fundamental document. The question is, what should make what?  Whether the Constitution should make the Society or the Society should make the Constitution?

 If we go according to the first postulation then India is the perfect example of the same. The words of Dr. Ambedkar on the implementation of the Indian Constitution make the present situation of India quite clear. According to him, “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic.” And also, according to Dicey’s ‘rule of law’, there should be a predominant legal spirit that is often absent in this case because society has not evolved the concept of justice at its root level and it is a reception of law from other prevailing structures. As the understanding and essence of law mainly missing at the root level, therefore, it is nothing more than an experiment (of adopting fundamental law of other countries) without keeping in consideration the variable elements, in this case, socio-economic and political-cultural factors. It only creates the just institutions on paper, which again lead us to the earlier discussion whether to look at the just law or lawgiver. But this postulation cannot be totally ignored because, in a society where only a few dominant classes and castes have their saying, we cannot spontaneously inculcate the concept of Justice at roots. It is an evolution that grows with dialectics. So, for further development, we can inculcate an idea upon which future society will be built and be capable of evolving the better concept of justice at its roots. Now, coming to the latter postulation, i.e. the Society should make a Constitution. Here, the concept of evolution of law is followed, as in the case of England which does not have a written constitution but unwritten principles developed from the ages. But it can also lead to a stage where the guiding norms of the dominant community become the leading factor of the evolution of law. The evolution of law shouldn’t develop on concepts like “White man’s burden” but it should be an Evolution out of Just society which is inclusive in the active participation of every section and their ideas. The participation of different sections must be organic rather than an offer granted by the dominant section because it is their basic human Right which doesn’t need anyone’s authorization. For a society to make a Just constitution, the society itself must be inclusive and shouldn’t run on any kind of exploitation (be it economic or social or cultural exploitation). I believe this is one of the fair means to make the constitution, i.e. the fundamental document, which follows the Just socio-economic-political structure of society. The structure referred, is the one which should lay the foundation for institutions built by coming generations to be just and fair.

Well, I believe this is the biggest issue of governance that we face today. Without reforming the structure, the evolution of law cannot be just and a government that survives on the prevailing exploitative structure will always work for maintaining status-quo. If you have any other justification kindly suggest to me. 

 

  By: Himanshoo Atri