Daniyal Qureshi | Symbiosis Law School Pune | 8th July 2020
“WE THE PEOPLE OF INDIA” the opening words of the most historic period of the Indian people; the first words of the unenforceable preamble of the Indian Constitution of India. Over the course of the Indian democracy these words have offered great insight into the idea of justice and law which the Indian legal system stands for.
Theory of Social Contract in India
“Our Constitution as appears from the Preamble, derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution.”[1]
The social shift during the nineteenth and the twentieth century across the world drove the people of the world away from monarchies and oligarchies and instituted the idea of personal liberty and freedom.
The Indian freedom movement throughout the later half of the nineteenth and the earlier half of the twentieth century is a monument of struggle against oppression and the deprivation of liberty and individual dignity. The establishment of the Indian Constitution marks the closure of the century long struggle of the people of the Indian subcontinent with the establishment of two states, one a theocratic state, and another the secular democratic state of India that is Bharat.
The theory of social contract is embedded into the legal system of the state of India evidenced with the very foremost sentence of the establishment of the country.
John Locke’s interpretation of the social contract is perhaps the one best suited to explain the nature of the Indian Constitution and how it establishes the state and how it interacts with the people. The surrender of rights is not absolute in the Indian legal system as is evidenced by article 13 of the constitution. The state established by the constitution is as advocated by John Locke in His Second Treatise of Civil Government “A state of liberty; not of license”
“State of Liberty; Not of License”
The theory of social contract solves the great question of the origin of rights, It reverses the idea that only the King, the representative of God is vested with rights in this world and are distributed by him to the people of his land.
The modern democratic and republic jurisprudence instates that rights are occur in nature and all humans are possessed with simply by the occasion of their birth. These rights of self-protection and survival have complicated themselves with the invention of the idea of property. As Locke argues that all people are possessed with the executive rights of
Therefore, in the larger interest of the society these rights are surrendered to one entity, the state, for the coagulation of the society itself and establishment of a unified entity i.e. The nation.
Rights
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”[2]
As advocated by the theory of social contract, the origin of rights is not in the authority of the ruler, rather in the authority of the subjects being ruled. Therefore, the question of pronunciation of rights that arose at the fall of a monarchical state during the period of political enlightenment, is answered with a variant attitude by the establishment of different democracies.
Since the identification of the point of origin of rights shifted, representative democracies come into the picture for the sake of pragmatism and administration of nations. Assuming universal adult franchise as an automatically granted phenomenon, the governed indirectly becomes the sovereign. It is safe to say the responsibility of the Indian Parliament is a delegated one, from the people of India. Although the Indian Constitution lays out the authority of the Indian Parliament, deriving an inference from the doctrine of basic structure, so revered by the Law in India, and the interpretations of the court, it is abundantly clear that the power of the parliament originates in the constitution and not vice versa. The constitution of India is the grund-norm.
Right to Recall
“In this Republic the electors shall have the right to recall their representatives, if so desired, otherwise the democracy shall become a mockery.”[3]
In the context of the United States of America, the right to recall is fundamentally woven into the declaration of independence. But not so with the case of India. The independence of India was legally, not declared rather granted by the Indian Independence Act 1947 by the English parliament. The constitution of the United States of America adopts the theory of Locke propounded in his Second Treatise of Government. The question begs itself that if the India Constitution has adopted Locke’s theory then why has it missed out on one of it’s most defining features.
While discussing the Right to Recall, Sardar Vallabhbhai Patel said the following:
“He has moved another amendment in which he suggests that power should be given in the constitution to the voters to recall a member who has lost the confidence of his constituency. I do not see why such a provision should be made. I think it should be left to the honour of the member elected. When he feels that he has lost the confidence of his constituency, he must resign of his own accord, instead of having to be called upon to do so, and having a provision to that effect made in the constitution. A wise member will always keep his finger on the pulse of his constituency and I think instead of putting in such a provision, we should try to develop, a healthy sense of responsibility and sense of honour in the members. If there are any stray instances or some black-sheep who having lost the confidence of their constituency still want to continue to represent that constituency in the House, for some such bad instances we should not disfigure our Constitution. We should leave it as it is, to the good sense of the members concerned.”
It remains astoundingly unclear why the Constitutional Assembly failed to include the Right to Recall as a part of the Indian Constitution. Perhaps the investiture of good faith in future caused an exceedingly optimistic legislature to place their belief in the few as compared to the many.
Conclusion
Right to recall is a right fundamentally woven into the jurisprudence upon which the Indian constitution has based itself upon and perhaps it is the greatest blunder of the Indian Constitution.
Confidence in representation is the founding stone of a true and effective democracy, and such confidence cannot exist without a mechanism to rectify a situation of no-confidence. Despite the fact that the House of representatives is vested with a power to hold a motion of no-confidence, the Indian citizen remains void of such entitlement. Nonetheless, it is not possible to have true suffrage without the right to cast a vote of no-confiddence.
[1] Union of India v. Madan Gopal (1954) SCR 541 (655)
[2] Declaration of Independence, The unanimous declaration of the thirteen United States of America
[3] The Revolutioary 1925, Hindustan Republican Association available at http://www.shahidbhagatsingh.org/index.asp?link=revolutionary
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