Some Meta-Constitutional Provisions in the Constitution of India

Montesquieu

In the last post, we discussed the meaning of meta-constitution. In the present post, let us understand some of the meta-constitutional provisions present in the Constitution of India. 

1. The Concept of Due Process – This is not given in the constitution but has become a part of the constitution. Justice Beg said that even if we forget about due process, then under our constitution, ‘procedure established by law’ means that:

a. The person must be given notice

b. The case must be decided by an independent court.

c. The procedure must be fair and reasonable.

This was upheld in the Maneka Gandhi’s Case as well. Due Process includes substantive due process as well as Procedural Due Process.

2. The Concept of Rule of Law – The Supreme Court has time and again reiterated that Rule of Law is the basic feature of the Indian Constitution. Rule of Law has a very wide meaning. Dicey developed this theory in order to check the supremacy of the parliament in Britain. Rule of Law means pre-eminence of law, equality, justice, accountability and the spirit of law. This simply means that the rights of the people must flow from the customs and traditions and not just documents. Dicey talks about inalienable rights of the people derived from the common law. The widest meaning of rule of law has developed not only human rights dimension but also socio-economic, political and cultural dimensions. The person must be in a position to develop his abilities and personality to the fullest. Thus ‘rule of law’ is also a meta-constitutional provision.

3. Separation of Powers – It is not present in our Constitution. The court believes that the Separation of Power is a fundamental feature of our Constitution. The classical theory of Separation of Power states that:

a. The same person should not be member of more than one organ of the government.

b. One organ must not exercise the functions of another organ of the government.

c. No organ of the government should interfere in the functioning of the other organs of the government.

Thus, the organs must be kept in water-tight compartments. In this sense, it was made the part of the American Constitution. The ministers do not sit in the Senate or Congress.

Modern Interpretation of Separation of Power

Threat to Liberty lies not in the mixing of the powers but in the unchecked powers and in the accumulation of power. Thus, the modern theory is about checks and balances so that everybody is kept within its own defined limits in the constitution. Subsidiary power may be exercised. The sources of power must be different but the power may flow in the same channel. It is in this sense, the Supreme Court has made this as a part of the Indian Constitution.

4. Judicial Review – It is nowhere given in the Constitution. But, today it cannot be imagined the governance to function Judicial Review. This power has been created as implied from the scheme and the structure of the constitution. This is an anti-thesis of the majoritarianism and democracy. But it has become part of both the American and Indian Constitution because experience has shown that without Judicial Review, it is difficult for the Constitutions to function. In exercise of Judicial Review, the court has made more additions to the constitution than the congress or the parliament itself. The American Constitution could not have survived without the aid of the Supreme Court. Thus it has become a part of our Constitutions.

5. Natural Justice – It is present in our Constitution in a very limited sense. It has become the bread and butter of the Indian Constitution.

(This short note was prepared while taking notes in the class of Professor I.P. Massey.)