Challenges in Constitutional Law

-R. Venkataramani, Senior Advocate, Supreme Court of India

Walter Bagehot wrote the book ‘The English Constitution’ in 1867. He wrote it at a time when the representative government in England was undergoing changes in its representative character. The ascendency of the working class was a phenomenon still being studied. Bagehot’s book is a good deviation from the standard accounts of English Constitution which traditionally talked about the Queens, Lords and the commons and the first principles traceable to Magna Carta. He wanted to talk about the real secret of the British Representative Government –what once was “the appendages of monarchy” had been converted into the essence of a republic. He was, however, concerned about the contrast between the paper description of the constitution and the reality that went into constitutional practice. With the emergence of majoritarian rule through the electoral process, universal suffrage theoretically granted to all, the great vigor of participation in the representative government. Bagehot was also, therefore, looking at “the supremacy of ignorance over instruction and of numbers over knowledge”.

This rather long prologue to understanding the challenges of constitutional law is to move away from, and not being confined to, doctrinaire analysis of constitutional issues. Challenges in constitutional law, in essence, are challenges to the human genius and ability to manage its existence through shared processes, accommodating diversity and its attendant tensions.  May be political theory can no long erect hypotheses and claims outside constitutionally articulated statements?  “Constitutional discipline” can be said to be the mantra for all social, political and economic actions. All agreements on what governments and people would seek to accomplish towards equality and liberty are contingent upon the fact that only publically reasoned agreements matter and that, first we must agree to do all this.  This is where the first challenge in constitutional law viz., constitutional practice, arises. We may proceed to state that by constitutional law, we do not have in mind mere digests of case law or judicial pronouncements and interpretations. We visualize the whole practice of reading and working the Constitution by all – the people with their public spheres, governments, parliaments and the judiciary – as constitutional law. We shall move away from theories and debates on constitutional interpretations by courts, and focus on the complete canvas.

It is only through continued adherence to constitutional disciplines and to social compacts and promises built and rebuilt, that the challenges noticed above can be wisely handled.

Read the full article here.

Cite as : R. Venkataramani, Challenges in Constitutional Law, 1 Ind. J. of Const. & Admin. L. 39-46(2017).

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