As Indian Summer, describes pre-colonial India, “In the beginning, there were two nations vast, mighty, and magnificent empire, brilliantly organized and culturally united, which dominated a massive swathe of the earth. The other was an undeveloped, semi-feudal realm, riven by religious factionalism and barely able to feed its illiterate, diseased, and stinking masses. The first nation was India. The second was England.”

Over the course of history, withdrawing colonialism left numerous nations in pieces. For such countries, this division was a concurrent process in achieving independence and drawing land borders with the motive of achieving complete partition. One of these countries was India. 

After independence, colonial India was divided into two parts- the newly found India and Pakistan. Punjab and Bengal were sliced down into two— amid violence, riots,  rape, and assaults on women, resulting in countless deaths. However, this is just a portion of the story’s larger picture, not all of it. 

At the time of Independence, India had 565 princely states or autonomous regions; which were all offered a choice to either remain autonomous states or join one of the two nations: India or Pakistan. 

The military intercession in Junagadh, Hyderabad, and the hefty influence of the military in northeast India, drew them to India. This only left the autonomous region of Kashmir which was then under the reign of Maharaja Hari Singh. Kashmir initially planned to be an independent state but later agreed to join  India when militants aided by Pakistan had nearly reached Srinagar. Indian Army troops handled the situation in Kashmir, resulting in the state reverting its earlier decision of being an autonomous territory. Kashmir was partitioned with the valley being in India and other parts in Pakistan. The division done in 1947 has not mended Kashmir even after three wars and thousands of encounters. Even after the special status given to Kashmir, under article 370, was revoked on 5th August 2019,  there is yet to be a clear resolution of the issue of Kashmir.

With the intention of planning the independence of India, the Constitution of India was drafted. The Constituent Assembly was made with the motive to draft and finalize the constitution of India. When Jawahar Lal Nehru placed the objective resolution, the assembly did not pass it swiftly, needing to stand by— trusting against all expectations that India will part and Pakistan would not be created. Moving on with this, the assembly approached its undertaking to make a constitution, which was a task that was never attempted before. The objective resolution later came into force as the “Preamble” of the Indian Constitution.

India has a glorious variety of dialects, numerous religions, and customs dazzling with an endless assortment of races and castes. India itself has more customs and religions as compared to all the other continents, inclusive of all the other nations in Asia. Thus, making the constitution for such a vast population was a task that required the most exceptional set of individuals of the time. The constituent assembly that was formed with a motive to draft the constitution first sat on 9th December 1946 followed by three years of drafting that finally ended with the last sitting on 24th January 1950. On the 26th of January 1950, the constitution was adopted, making India a Republic and the world’s largest Democracy. 

The Indian constitution is one of a kind and an astonishing achievement in terms of the constituent assembly. Many countries would adopt or make a constitution that would eventually end up failing. Nations like Iraq, Sri Lanka, and Myanmar are very evident examples of how nations failed to implement constitutions. All 389 members of the assembly focused on free speech and discussion while forming the constitution. 

Although the foundation for the Indian constitution is taken from the Government of India Act 1935, only the Bill of Rights was drawn from the United States of America’s Constitution. Our constitution drew its inspirations from American, English, French, and Russian Revolutions to make a functional mixture, disseminated in over 395 articles and 8 schedules. As of this date, our constitution has been amended 104 times, increasing the total count to 448 articles and 12 schedules.

The Constitution has its roots in federalism which gives India a solid union and state government system. It also contains the Preamble, the Fundamental Rights, and the Directive Principles of state policy, which form the fundamental policies and values that the nation still runs on today.

Another approach to understanding the Constitution would be to think of it as a democratic approach towards conducting the elections and politics of the nation, with a larger parliamentary power looking over its proceedings alongside a judiciary which is endowed to be the provider of justice and to implement the rule of law. The constitution gives the judiciary the power to provide justice as its fundamental belief is that without justice, there will always be oppression. 

The constitution differs between the democratic structure of the nation and the judiciary. Still, since independence in 1947, the nation’s constitutional and legal history highlights the constant and enduring strain between the two: the parliament and the judiciary. There was antagonism between the Parliament and the legal executive, with the parliament continuing to utilize its capacity to amend the Constitution until 1973 when the Supreme Court proclaimed that the Parliament’s amending could not disregard the Constitution’s basic structure. Due to the far-fetched view of the constitution-makers, there has been some balance between the powers in the realm of both: the Parliament and the Judiciary.

Jawahar Lal Nehru, the first Prime Minister of India, was one of the strongest guardians of constitutional freedom and spirit. He took roads of the courts to scrap the low-cost zamindar system that had been prevailing in India for a long time, never standing in the way of the bench. On the contrary, when Indira Gandhi came into power, she did all the stunts to keep herself in office, mending and bending the constitution to her whims and fancy. She proclaimed a national emergency in 1975 to delay elections and keep herself in office. Political opposition was held under preventive detention, and she curbed all the fundamental rights of the citizens. During this period of emergency, only the Supreme court stood against her; though eventually falling prey to her power in the ADM Jabalpur case. She claimed that she did this in good faith for the nation, only before losing her next election in 1977. 

Had the constitution-makers not been far-sighted, looking towards a fast-developing India, and if they had not given the judiciary the power it has today, the constitution would have been a ‘Rulebook for the elected Dictators’. The judicial system of India was once regarded as one against the social justice schemes of the governments. But in the early 1980s, the court came to fight for its name by introducing public interest litigations and developing jurisprudence for environmental law, social justice, and the fight against corruption.

Whenever questioned, the Supreme Court today possesses a prominent spot and opinion on the matters that matter to the nation. This has not been without its fault-finders who fight that the justice system has ventured into the realm of policymaking that is beyond its intended scope. Moving into policymaking, the judiciary has worked to make a balance between the executive and the parliament whenever needed to do so. Egalitarian in its position, the Supreme court has set up its affinity with the citizens.

The parliament and the executives have gotten judges politicized. The justice system has the power to appoint judges by the collegium system but this is being obstructed by the executive. A judiciary should be independent at any cost; a biased and favored judiciary leads to the collapse of the very foundation a nation stands on. Many countries have withered on the grounds of the lack of an independent judiciary. Without a solid judicial system, the whole establishment of constitutionalism will implode.

In the last three decades, we have seen the growth of a uniquely possessive ghost looming over India — the apparition of communalism. The decimation of the Babri Masjid, mob violence in Mumbai, Gujarat, and Uttar Pradesh, riots during CAA protests, the constantly growing incidents of mob lynching, the farmer protests, and arresting journalists under seditions and other arbitrary actions by the majoritarian government. All these have threatened the democratic and secular structure of the Indian constitution. Each and every citizen is the guardian of the constitution and should make sure that such incidents do not occur in a nation like ours, which is built on the very foundation of secularism and unity.

With all that being said and done, the Constitution is not simply routed to the public authority or the judicial system. It is for the citizens to enthrall the soul, meaning, and ideals of democracy and live through it. India’s democracy is one of its kind. Amid numerous confrontations between the organs of the state and different ideologies ruling the nation at different times, it is for the citizens of the country to embrace the constitution, and let the democratic structure strive, by keeping the constitution on the highest pedestal.

Kumar Kartikeya is founding editor of The Policy Observer.

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