Prof. Vinod Dixit, former Professor of Law, University of Delhi conceptualised an idea of an online journal titled, ‘Journal of Comparative Constitutional Jurisprudence’ ISSN: 3049-4192 (O). The journal shall be double blind peer-reviewed. Primary aim of this journal is to intellectually empower young faculty of law teachers. This journal is different from other journals on ‘Constitutional Law’ and on ‘Jurisprudence’ in as much as the focus of this journal is on jurisprudential and historical context of constitutional law, conventions and practices. Centre of our focus shall be the Constitution of India, though without reference to other constitutions in the context of history and philosophy of other countries the discussion may not be complete. The philosophy of the Constitution of India is inspired by the evolutionary changes in the written constitutions of many democratic countries as well as constitutionalism of others. We would not hesitate to appreciate a paper even if its major focus is on foreign constitution and its history with some reference to constitutionalism in general.
There is reason to believe that Dr. Bhim Rao Ambedkar and other members of the constituent assembly drafted the constitution on the corner stone erected by thousands of philosophers of other countries as well as of India. Indian Constitution and for that matter any other constitution, is not the brain child only of the framers of that constitution, framework of every constitution is the cumulative effort of the framers of that constitution and thousands of acknowledged and unacknowledged philosophers of the world.
In the mediaeval and ancient periods, all kings derived their authority from God or gods and, therefore not answerable to the people. The authority of the King was derived from a perfect sky dweller who personally interfered in the matters of the State through the King. Thus, making the clergy and theocratic institutions as the repository of authority and the King and the clergy derived their legitimacy from one another. Social Compact theorists were able to change this source of power from God and gods to the people resulting in the demolition of the authority of the monarchy and the theocratic State. We are indebted to Locke for putting Fundamental Rights on a special pedestal. The ‘general will’ of Rousseau is without doubt the corner stone of democracy. The ‘Long Parliament’ and the ‘Magna Carta’ of Great Britain and the famous saying of Rousseau, when said, “Man is born free but everywhere he is in chains”, are the foundations of liberty. The idea of liberty was further developed by J. S. Mill and the American judges of the US Supreme Court.
The Chief Justice of the Kings Bench Sir Edward Coke when pronounced that ‘God and Law protecteth’ the King and not vice versa, he was dismissed, but the idea of ‘rule of law’ implanted in the conscience of the people could not be. Justice H.R. Khanna for his dissent in ADM Jabalpur was superseded but he will be long remembered for espousal of human rights, that is what cannot be achieved through Article 21 of the Constitution can be achieved through human right to life. Human Right discourse has close connection with the philosophy of Immanuel Kant and Nuremberg trials. If positive law becomes oppressive and grossly unjust, the only remaining hope is human rights discourse.
There does not seem to be any doubt that Gandhian philosophy also has a deep imprint on the Constitution of India. Though our constitution is a liberal constitution and liberty has been accorded a high value, there is a real possibility of creation of vast differences in the economic status of people, leading to estrangement between them. The idea of fraternity implies that the differences must not be allowed to grow to such an extent as to being capable of breaking the bonding of togetherness. Gandhi was devout Hindu belonging to the most orthodox denomination of Hinduism, that is Sanatan Dharma, yet he introduced the concept of equality in highly stratified caste system. The original idea of occupational specialisation found expression in varna system, which did not have any place for untouchability, rather the original varna system was based on occupational and varna mobility. At some stage of history, the system deteriorated into birth- discrimination was a necessary sequel of abolition of untouchability. (Articles 15 and based caste (jati) system. In order to abolish the practice of untouchability, the result is innovative Article 17, which criminalises the age-old practice of untouchability, the concept of protective 16). The caste-based society distributing rights and duties on grounds of birth had to make way for a meritarian society.
The evolution of Parliamentary form of government in Great Britain experienced many historical vicissitudes and necessarily intermingled with concepts of liberty, democracy and equality. But why did United States prefer Presidential form of government over the Parliamentary form? May be the assertion of a revolutionary change and desire of an autochthonous constitution gave the world a new form of government with stricter principles of separation of powers. Or maybe they more influenced by Montesquieu. Is it not that a stricter separation of powers ends up immensely empowering the head of the executive? These can be some stimuli for ideas on the themes of this Journal.
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JOURNAL OF COMPARATIVE CONSTITUTIONAL JURISPRUDENCE 