The worst rulers have contributed to the making of the best of the laws. King John of England, who had many vices and abused his powers in every possible way, is to be credited for agreeing at Runnymede, maybe reluctantly, to the Magna Carta on June 15, 1215 — 800 years ago. Just 3,600 Latin words and 63 clauses written on stretched and dried sheepskin called parchment have changed the course of history. It was the first charter to be granted through force, by an English monarch.
Prior to the Magna Carta there was no law other than custom. There was no Parliament and no fundamental rights. With the Magna Carta, the foundation of the rule of law as opposed to the rule laid down by an individual, the king, was laid. For the first time limitations on the powers of the king (or State) were recognised and thus constitutionalism was born.
The Magna Carta has been the inspiration for most modern constitutions though in real terms it had talked of the rights of barons rather than ordinary people. Having a constitution in itself is not of much value as it may be devoid of constitutionalism. Hitler did have a Weimar Constitution. Constitutionalism is the antithesis of arbitrariness and is an idea of limited government.
Borrowing from the Magna Carta the main purpose of drafting our Constitution was to limit the power of government. Governmental power should not in itself be destructive of the values it was intended to promote. The Fundamental Rights, under the Indian Constitution, thus do the sacred function of limiting the power of the ‘State’ from where the greatest threat to such rights comes. The other institutional methods of limiting the power are to be found in the doctrines of the distribution of powers, separation of powers, and judicial review.
The Constitution, rather than protecting fundamental rights and civil liberties, has been used to establish a new structure of governmental power. Like it or not, power rather than the Constitution has become supreme — it has always been so and will continue to be so in most democracies.
The Constitution has become an instrument of power rather than one of limitations. Our politicians have indeed ganged up against the people, the ‘sovereign masters’ of this country. Criticism of the government is understood as sedition or treason. We continue to have draconian laws under which people can be arrested and denied bail and protection of ordinary laws. Parliament has not codified its privileges. If people write or speak against Parliament or state legislatures, they are hauled up for the breach of legislative privileges. Similarly, if we criticise a decision of the court, we could be hauled up for contempt.
It’s true that all societies have been authoritarian; governments more so. Just like the previous Congress governments, the BJP government’s one-year performance too, from the perspective of constitutionalism, is disturbing. Constitutionalists are apprehensive that under the new dispensation we would further tilt towards authoritarianism. Let the Magna Carta remind the government of its promise of ‘minimum government, maximum governance’.
(Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad. The views expressed are personal)