“The Supreme Court treated the Constitution as lex rather than jus”

The Constitution transcends the status of a mere legal text belonging to the genre of lex; it was intended as a declaration of the Idea of India envisioned by the countless individuals who departed this world without witnessing the dawn of the freedom for which they lived and even died. It is also the work of those fortunate enough to experience the liberation of the country from colonial oppression. This complexity renders the study of our Constitution particularly challenging. It is difficult to regard it as a mere dry piece of prose or as legal lexicon without acknowledging the spirit that is indeed central to it. Consequently, the overarching aim of this book has been to identify within the Constitution of India the concept of nyay (justice) rather than niti (ethics), as articulated in Amartya Sen’s The Idea of Justice (2009).

Although the tumultuous times that gave rise to our Constitution have receded from collective memory, their echoes persist in partition literature and sporadic border disputes with Pakistan and Bangladesh. In this context, the argument that the Constituent Assembly was not a representative body arises from two distinct perspectives: first, it was not an elected body reflective of the people in a genuine sense; and second, the absence of Muslim League members from the Assembly was a notable shortcoming. However, this study concludes, supported by substantial factual evidence and logical reasoning, that the circumstances surrounding the formation of the Constituent Assembly and its composition were arguably the most conducive and competent that history had presented.

Delaying the establishment of an assembly elected through universal adult franchise would have necessitated addressing an insurmountable challenge: who would enumerate the voters and conduct the elections. Such an exercise, indeed would have obliged the colonial regime to facilitate it, thereby extending their dominion over us for a protracted duration. Beyond the inherent absurdity of awaiting freedom without a definitive timeline, this proposition also carried the potential to enable the manipulations that the colonial rulers had long engaged in to exacerbate communal divides, particularly in collaboration with the Muslim League. Furthermore, the Muslim League had demonstrated a proclivity for duplicity, and it was evident to the Indian National Congress and other groups committed to independence that Jinnah’s party was resolutely intent on pursuing nothing short of a separate nation.

In this context, Winston Churchill and Viscount Simon publicly expressed doubts regarding the representative nature of the Constituent Assembly. Churchill characterised the assembly as representing merely one major community within India, while Simon referred to it as a body of Caste Hindus. This assertion was made as late as 6 December 1946, following the dispatch of letters by H. V. Iengar, the Secretary to the Constituent Assembly, to each of the 296 members, including M. A. Jinnah and other representatives from the Muslim League, inviting them to the session commencing on 9 December 1946.

Churchill and Simon’s claims were ultimately proven incorrect. Indeed, the framers of the constitution ensured that neither religious minorities nor marginalised castes, who had experienced exclusion from the political sphere for several centuries due to discrimination, would suffer such exclusion within the constitutional framework. Articles 25–28 (under the heading Right to Freedom of Religion) and Articles 29–30 (under the heading Cultural and Educational Rights) in Part III of the Constitution addressed the concerns of religious minorities. This represented a significant achievement, particularly in light of the communal violence and the trauma resulting from partition.

Similarly, despite a substantial proportion of assembly members being caste Hindus during the initial session on 9 December 1946, the Constitution they drafted incorporated provisions aimed at the inclusion of castes that had long been marginalised in social, economic and political institutions. Articles 15, 16 and 340 of the Constitution ensured that the guarantee of equality enshrined in Article 14 did not devolve into an abstract concept. The Constitution established the pursuit of an inclusive polity as a constitutional mandate. While grey areas persisted in this regard, amendments to the Constitution could readily address these issues. The constitutional framework in this domain did not conform to the Nehruvian perspective, which suggested that the relationship between caste and backwardness would naturally dissipate within an industrial society. Rather, the constitution makers recognised the necessity for positive discrimination. This imperative was later acknowledged by the political leadership of independent India and the higher judiciary, albeit not initially.

As previously noted, the framers of the constitution, drawing insights from the experiences of other democratic constitutions, designed their own document to guide independent India’s pursuit of social, economic and political justice for its citizens, with democracy serving as the foundational principle rather than merely a structural element. Consequently, they committed themselves to fulfilling the promises made to the ordinary people of India during the freedom struggle in a substantial manner. For them, democracy transcended being a mere form of government; it was an ethical imperative. The Objectives Resolution of 13 December 1946 encapsulated this vision by reflecting the myriad advancements achieved during the independence struggle and the spirit of Gandhi’s expression on 5 January 1922.

However, this process was fraught with challenges. The members who convened in the House were not a regimented army but individuals with diverse perspectives. The assembly functioned as a microcosm of contemporary India: a multilingual, multi-ethnic and multi-religious polity, as well as a crucible of ideas representing a wide spectrum of economic policies. This complexity was evident in the pronounced divisions within the House from the very outset. Some issues were addressed resolutely, while others were resolved through compromise. The conflict regarding language, for instance, was evident in the early days of the Constituent Assembly. This conflict had the potential to disrupt the functioning of the newly emerging nation, which boasted a diverse array of languages. This division became apparent when R. V. Dhulekar, a Congress nominee from the United Provinces, insisted on using Hindustani in the debates instead of English, asserting, “People who do not know Hindustani have no right to stay in India.” He further implied that those present in the House to formulate a Constitution for India but lacking knowledge of Hindustani did not merit membership in the Assembly and should therefore vacate the premises. Such parochialism was starkly evident. Chairman Rajendra Prasad did not allow this issue to fester, and other members remained silent. The language issue resurfaced in September 1949, at which point the Assembly definitively resolved the matter by electing not to designate a single language as the national language, instead opting to designate English as the official language temporarily.

The text endeavours to scrutinise and showcase the alterations made to the Constitution since India’s declaration as a sovereign democratic republic, including the subsequent addition of ‘secular’ and ‘socialist’ to the preamble. It treats these changes within their historical context and considers them essential to understanding the Constitution. The ideals of the Constitution’s framers, who aspired to create an egalitarian society in India, inspired several changes, including the addition of the Ninth Schedule and the inclusion of numerous land reform Acts. The landed gentry, with their financial resources to engage in litigation and delay agrarian reforms, effectively captured institutions in independent India, particularly the bureaucracy and legislatures. The constitutional scheme in this regard did not gain traction for a significant period following 26 January 1950.

There is a presumption that the Constitution serves as the foundation upon which the democratic edifice was constructed. However, experience and evidence do not support this assertion. Although such a premise may be appealing, it is fraught with serious limitations, as revealed by the manner in which the higher judiciary adjudicated legislation under the post-colonial dispensation. Some amendments were responses to judicial decisions, particularly during the first two decades of the Constitution’s existence, when the highest court adhered strictly to the letter of the Constitution rather than its intent or overarching scheme. The Supreme Court treated the Constitution as lex rather than jus, leading to erroneous decisions. Many individuals involved in the constitution-making process were still alive and expressed frustration with the court’s tendency to downplay the aspirations of the framers. Such interventions by the judiciary necessitated several constitutional amendments. The tragedy lay in the fact that these corrective measures were delayed, allowing a multitude of distortions to emerge.

The blame cannot be placed solely on the judiciary; a significant portion of the responsibility also falls on the legal scholars and political leaders who guided the Constituent Assembly. Their assumptions regarding certain key provisions and clauses contributed to a lack of understanding of the Constitution’s intended meaning. The political leadership’s assumption that future Parliaments would intervene forcefully in response to deficiencies had, in a different context, played a significant role in positioning the higher judiciary as an impediment to social legislation.

This is an excerpt from the ‘Conclusion’ chapter of V. Krishna Ananth’s Constitution of India: 75 years of the World’s Largest Democracy, published by Atlantic Publishers and Distributors in 2025.