Indian Constitution and its Contractual nature

The Indian preamble, an ideal manifestation of the objective sought to be imbibed in the Indian culture, not only in theory but in practice as well; starts with this magnanimous terminology of ‘We the people of India’; therefore, bestowing the ultimate power to the Indian citizens; so it is the Indian citizens, who under the umbrella of ‘Collective force’ have bestowed the Indian Constitution[1] with the power and not the Indian Constitution who has bestowed the power on the Citizens of India.[2]And all the powers of the Constitution, and that of the Constituent Assembly is been derived from the people of the India.[3]It is this declaration which makes preamble a sublime one as compared to others, it is draft not forced upon the unwilling hands of the bearer, in fact, it has been given to themselves by the people of the country through their ‘Constituent Assembly.’[4] Further, it was observed in the case of Union of India v. Madangopal[5]

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.

Additionally, it establishes a contractual nature of the Indian Constitution; which is a result of the consent of the Indian Citizens underlying it.[6] The very concept that Indian Constitution is a Contract, needs much convincing to be believed in. The Idea of the contractual nature of the Constitution was first given by Lysander Spooner; who quotes

The Constitution has no inherent authority or obligation at all, unless as a contract between man and man.”[7]

On this principle he works out a contour, where he concocts that if a Constitution is a contract, similarly it shall be applicable to the persons who were present then when the contract was being made e.g., when the American Constitution was being framed in the 1776, this contract shall be applicable only to the citizens of America present at that time. Similarly, the Indian constitution which was drafted in 1950 is applicable to the citizens living at that time.

But the point of difference between a Contract and a Constitution comes in due to the compulsory nature of the latter as compared to the voluntary nature of the former. This is what John Locke called it as tacit consent to the citizenship.[8]As it is a pre-requisite for the formation of  the Contract, that both the parties must have given their voluntary consent to the agreement; the same is not case with the Indian Constitution, as explained by John Locke in his “two treatise of Civil Government.

Tacit Consent to the Contract

The very idea behind the concept of tacit consent to the Constitution was first evolved by John Locke, where he has styled that by taking birth in a particular country and by using its amenities we are impliedly agreeing to its suzerainty. The traces of which can be found in section 8 of the Indian Contract Act 1872; which specifically provides that a contract can be entered either by performing the condition or by receiving the consideration, therefore, our taking birth on the Indian soil and using its amenities has qualified us to be a party to this Contract we call Constitution.

The trespasser Obligation

Another theory which compels us to the obligatory nature of the Constitution is the concept of Trespasser obligation, under which the person trespassing the land of the owner is liable to follow his orders or else he shall be liable for trespassing, similarly by taking birth on the land of India, we are somewhere trespassing on the land of Indian Government, therefore are suzerainty is subject to Indian Sovereignty.

[1]  Sauvik. Chakraverti, The Essentials Frederic Bastiat, Liberty Institute, 2007, Bastiat was a great supporter of human liberty and was of the view that it was the collective force of the human society which gives the Law its force.

[2]  Keshavanada Bharti v. State of Kerala (1973) 4 SCC 225, see also Behram Khurshid v. The State of Bombay AIR 1955 SC 123

[3]  Constituent Assembly Debates, Vol. 1, 13th Dec. 1946, The resolution moved by Jawahar Lal Nehru on the the aims and object of the Indian Constitution.

[4]  A.K Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88 per MAHAJAN, J.

[5]  Union of India v. Madan Gopal, (1954) SCR 541 (655).

[6]  Lysander Spooner, No Treason: The Constitution of no authority, Free Patriot press, U.S.A, 1867, the philosopher put forward the idea; that the constitution is only enforceable on the people who were living at the time when (Spooner, 1867)the constitution was made; he was an absolute believer on the contractual nature of the contract

[7]   Id. Pg 3

[8]   John Locke, Two treatise of the Civil Government, ed. Thomas Hollis (London: A. Millar et al., 1764). John Locke said by living under the suzerainty of a particular nation, we have given them our tacit consent to be their citizenship. See also Thomas Hobbes’ ‘Social Contract’ 1651, where he regarded as a single contract whih led to the offspring of state and devolution of the power by the people in the Levithian ruler whereas, John Locke in his Social Contract of 1689 was of the view that there were two contract, first by which the people organized themselves and by the second contract they surrendered their right to the sovereign King.


ABOUT THE AUTHOR

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ASHIT KUMAR SRIVASTAVA

Ashit Kumar Srivastava (AKS) is currently working as an Assistant Professor at Amity University, Lucknow. His main area of interest is Constitution and Jurisprudence. However, he mostly inter-relates various socio-legal topics together.

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