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Vol. 39, Nº 71 (2021), 633-642
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Constitutional foundations and
principles of the formation of a sovereign,
secular, and democratic state in India:
history and modernity
DOI: https://doi.org/10.46398/cuestpol.3971.38
Artem Arturovich Serdyukov *
Abstract
The purpose of the research was to study the fundamental
provisions of the Constitution of India and the amendments made
to it, which regulate the constitutional foundations and principles
of the formation of a sovereign, secular, and democratic state.
In addition, the article discusses the constitutional provisions
relating to the acquisition of independence, the freedom of India,
the formal establishment and consolidation of the fundamental
rights and freedoms of its citizens and the abolition of the
institution of untouchability. The study of the role and importance of the
political and legal views of the leader of the national liberation movement,
the philosopher and jurist Mohandas Karamchand Gandhi in shaping the
constitutional foundations and state structure of India is of some interest.
The author used a complex of scientic methods to achieve the objective.
It is concluded that the achievement of India’s political independence,
the declaration of equal rights and freedoms and the abolition of the
untouchable caste in the state Constitution, is a signicant contribution to
the development of this country and a rapid step in increasing India’s
importance in the world.
Keywords: democracy; society; citizen; rights and freedoms; equality.
* North Caucasus Federal University, Stavropol, Russia. ORCID ID: https://orcid.org/0000-0001-
6508-4071
634
Artem Arturovich Serdyukov
Constitutional foundations and principles of the formation of a sovereign, secular, and democratic
state in India: history and modernity
Fundamentos constitucionales y principios de la
formación de un estado soberano, laico y democrático en
la India: historia y modernidad
Resumen
El propósito de la investigación fue estudiar las disposiciones
fundamentales de la Constitución de la India y las enmiendas realizadas
a la misma, que regulan los fundamentos constitucionales y los principios
de la formación de un estado soberano, laico y democrático. Además, el
artículo analiza las disposiciones constitucionales relativas a la adquisición
de la independencia, la libertad de la India, el establecimiento formal y la
consolidación de los derechos y libertades fundamentales de sus ciudadanos
y la abolición de la institución de la intocabilidad. El estudio del papel y la
importancia de las opiniones políticas y legales del líder del movimiento
de liberación nacional, el lósofo y jurista Mohandas Karamchand Gandhi
en la formación de los fundamentos constitucionales y la estructura
estatal de la India es de cierto interés. El autor utilizó un complejo de
métodos cientícos para lograr el objetivo. Se concluye que el logro de la
independencia política de la India, la declaración de igualdad de derechos y
libertades y la abolición de la casta intocable en la Constitución del estado,
es una contribución signicativa al desarrollo de este país y un rápido paso
en el aumento de la importancia de la India en el mundo.
Palabras Clave: democracia; sociedad; ciudadano; derechos y libertades;
igualdad.
Introduction
The formal denition, proclamation, and direct implementation of the
principle of a mixed economy with active participation and the possibility
of regulation by the state, the synthesis of religious Indian institutions with
institutions that arose as a result of the formation and development of the
branch of constitutional law, and the implementation of the state function
to maintain universal peace and international security, considering the
priorities and state of the modern Indian state determine the relevance and
signicance of studying the genesis of the constitutional structure of India
and modern legislative regulation of the foundations of its constitutional
system.
In the process of studying the genesis of the constitutional principles of
India’s statehood, we consider it necessary to note that the Constitution of
India was adopted on November 26, 1949, two years after the declaration
of independence from British colonial rule. The document was ocially
published on January 26, 1960 and is valid considering the changes made.
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The Constitution is the supreme law of the state, regulating the main
directions of its activities, the mechanism (apparatus) of the state, the
powers of state bodies, and the fundamental rights and freedoms of its
citizens.
The Constitution of India is currently the most extensive basic law of
the state in the world, published using Hindi and English, which has the
highest legal force concerning the system of legislative acts of the state.
According to a professor at Oxford University, J. Insert (2012), the creators
of the basic law of India were able to accumulate in it the positive aspects
of the international constitutional experience of countries such as the USA,
UK, USSR, Canada, Australia, and many others.
1. Methods
The methodological basis of this research was an original universal
dialectical method of cognition. In addition, the following scientic methods
were used to fully achieve the purpose of the presented article: historical,
statistical, formal-legal.
We also used the method of comparative analysis of various views on the
priority of customary law in the regulation of public and state life in India
and on the importance of constitutional provisions in the process of forming
a sovereign, secular, and democratic Indian state, which allows identifying
the qualitative features of the basic law of the state and formulating its
signicance at the present stage of development of society and the state in
India.
2. Results
Let us consider the points of view of statesmen and leading jurists on the
role and signicance of the adoption of the Constitution, the formation of
constitutional foundations on the process of becoming a sovereign, secular,
and democratic state in India.
In this regard, we consider it necessary to investigate the well-founded
position of Gabriel Foster, who notes that the adoption of the Constitution
of India was not just a huge step on the historical path of the formation
and development of its independent statehood. It was a total secularization
of its public and state life, the formal consolidation of the legal status of
the individual, and the proclamation of his/her freedom from the varna-
caste system. It was incredibly signicant progress of the personal system
of Hindu law, the formation of an independent state, and a free society
(Foster, 2007).
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Artem Arturovich Serdyukov
Constitutional foundations and principles of the formation of a sovereign, secular, and democratic
state in India: history and modernity
Supporting the importance of the basic law of the state of India, R.
Shatropp pointed out that the Constitution of 1950, together with the
changes and amendments of 1976, represents for India and every individual
Hindu a door to integration on a global scale. It is a painful transition
from traditionalism to the norms of law and legislation that considers the
unconditional religious way and historical features of the state (Tharoor,
2018).
Pointing out the signicance of the amendments made to the Constitution
of India, we consider it appropriate to study the 42nd amendment to the
basic law of the state, published in 1976, under which India was recognized
as a sovereign, social, and secular democratic republic. Despite the formal
establishment of the above-mentioned status of the state, the question of
how secular the state can be considered in India is debatable at present.
Many authors, well-known jurists, and public and state gures note the
actual impossibility of recognizing India as a secular state due to the
signicant inuence of religious norms and traditions on the regulation of
an individual’s life, on his/her worldview, rooted for several centuries, and
the unshakable way of society as a whole.
Adhering to a similar point of view, the famous professor of the Delhi
University in the eld of law, V. Luthera, points out in his works that
India has never been a secular state, neither before the adoption of the
Constitution and amendments to it, nor after, and what is most interesting it
can hardly ever become such. Religion, society, and the state in it represent
one indivisible whole, in which the latter two parts repel and live according
to the norms of the former, which have been permeating them for centuries,
determining and directing. The fact that the adoption of the Constitution
and amendments to it makes it secular is, in my opinion, reckless, showing
only the strengthening of the role of the state in regulating public life and
nothing more (Luthera, 1964).
Agreeing with the opinion of V. Luthera, N. Lindton, professor of
constitutional law, focuses on the fact that by adopting the Constitution,
it is impossible to change the state itself in an instant, the foundation of
which throughout its historical development was the norms of customs and
traditions. Therefore, the recognition of a secular character is mostly at
least declarative, formal in nature, after all, the role of religion is perfectly
understood and realized in the life of the society, state, and individual in
India, regardless of whether the state establishes a certain status and order
(Lindton, 1972).
A similar position is held by Western Professor D. Smith (1967), arguing
that India, by its nature, cannot in principle be a secular state in the format
of currently and previously existing public and state relations.
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The desire of India to be recognized as a secular state contradicts in
its essence not only the very historical path of Indian civilization, where
religion and the norms of traditional law were of predominant importance
but also the political worldview of neighboring states, which is also an
important factor that cannot be ignored.
The establishment and recognition of the constitutional principles of
sovereignty, democracy, and a secular state, according to R. Khorny, is
the result of the assimilation of Western ideas and approaches that are
unacceptable for traditional India. In no way they aect the development
of its statehood: India itself is original and special, therefore Western
innovations in its legislation are not able and should not aect its path and
especially eradicate the original, traditional that allows its dharma to exist
(Khorny, 2015).
Refuting the above arguments, P. Gajendragadkar believes that with the
adoption of the Constitution of India, it acquires the shades of a secular
state. This occurs not by the fact of the entry into force of the basic law of
the state and amendments to it, but consistently, gradually, going through
a complex long path of transformation of the religious consciousness
of Hindus, recognition of the state itself, its mechanism, the possibility
of democratic governance, and the consolidation of rights and freedoms
in contrast to the imposed colonial control and management of England
(Gajendragadkar, 1971).
Therefore, at the initial stage, there is a recognition of the state as such,
awareness of its independence and freedom, a change not only in the
consciousness of representatives of society but also the existence of legal
consciousness. It represents a new stage in the development of statehood in
India and its integration into the international community as a full-edged
sovereign, independent, and free subject.
F. Brittner, sharing this point of view, emphasizes at the same time the
synthesis and absolute harmony between the constitutional foundations
and the religious adherence of the Hindus. The scholar points out that the
recognition of India as a free and secular state, as well as the recognition
of the freedom and rights of all representatives of the varna-caste system,
does not diminish the role and signicance of religious dogma, which will
forever remain in the heart and consciousness of absolutely every Hindu
(Brittner, 1984).
However, in the process of studying the constitutional foundations
and principles of the formation of a sovereign, secular, and democratic
state in India, we consider it necessary to point out the importance of the
political and legal views and policies of the leader of the national liberation
movement, the great statesman and reformer, philosopher, and jurist
Mohandas Karamchand Gandhi.
638
Artem Arturovich Serdyukov
Constitutional foundations and principles of the formation of a sovereign, secular, and democratic
state in India: history and modernity
All of Gandhi’s state activities determined and contributed to the
liberation of India from the colonial rule of England and the formation of
a free, secular, and independent democratic state. Through the unication
of Hindus and Muslims, Gandhi promoted the establishment of religious
tolerance, the unication of members of Hindu society, and the recognition
of each of them as free and full-edged citizens of India.
Moreover, Gandhi (1958) subjected the representatives of the religious
orthodox direction to reasonable sharp criticism from rationalistic and
moral-ethical grounds abandoning the role of the sacred sources of
Hinduism, calling for establishing and verifying their truth and then
throwing out forever everything that does not correspond to reality, the
rationalistic principle and the norms of morality, paying special attention
to the prescriptions that establish and support early marriages, women’s
inequality, suttee, the boundaries of the varna-caste system.
Thus, without abandoning the meaning and role of Hinduism, but directly
interpreting its position, Gandhi (1957) denied the existing hierarchical
structure of society with an inherent dierentiation into varnas and castes.
In his political and legal doctrine, Gandhi justies the thesis that the varna-
caste structure of Hindu society has never been a necessary natural organic
part of Hinduism while drawing an interconnected and conditioned parallel
between the hierarchy of the caste structure of society and the institution of
«untouchability», the ght against which he recognized as the fundamental
and primary function of the state.
Gandhi rightly noted that Krishna has always instructed that a real
Bhakti, neither in his thoughts nor in his actions, will never allow any
distinction between an ordinary dirty scavenger and a Brahman. Therefore,
there is no place for the institution of untouchability in Hinduism (Gandhi,
1959).
With his views, principles, life example, and dedication, Gandhi led
India to gain independence, establish equality and freedom, and consolidate
basic natural and positive rights. We would like to pay special attention to
the synthesis of the provisions of Hinduism and its argumentation in the
political and legal concept of the leader of the national liberation movement.
Gandhi managed to convey to everyone the meaning of the religious tenets
of Hinduism, the belief in the possibility of acquiring freedom, both state
and personal. Gandhi’s methodology is his life example, way of thinking,
consciousness, and sincere sacrice in the name of India and every Hindu.
His direct contribution to the adoption of the Constitution, the acquisition
of independence of India, and the codication and unication of Hindu
legislation is invaluable.
Highlighting the role of Gandhi in the development of Indian statehood
on the principles of freedom, equality, and democracy, J. Nehru (1964: 94)
noted that:
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we must always hold on to the anchor of the exact unshakable established
and generally accepted objective knowledge, reality, veried by reason, and most
importantly by experience, practice, which Gandhi revealed and presented to the
Hindu society, giving and explaining to every Hindu, regardless of his aliation
and status (1964: 94).
The author repeatedly emphasized in his speeches that the political and
legal principles formed by Gandhi, his very philosophy, permeated with
the faith of a true Hindu in synthesis and rational harmony, are combined
with legal education, practical skills, scientic knowledge, and empirical
experience of a statesman, which in absolute meaning allow giving India
and every individual Hindu freedom and independence (Husein, 1978).
3. Discussion
Despite the signicant inuence of religious norms and traditions on the
consciousness and worldview of Hindus, the adoption of the Constitution
contributed to the development of the statehood of India, the consolidation
of the rights and freedoms of its citizens, and the proclamation of an
independent sovereign secular state.
The religious dogma of Hinduism plays a signicant role in the
regulation of public and state relations in India, historically forms the way
of life, hierarchical structure, norms of behavior, and much more. In our
opinion, it is impossible to deny the role of religion and customary law in
the establishment and formation of statehood since the above-mentioned
aspect historically acts as a structural element of the consciousness,
worldview of every Hindu, and an integral part of society and the state.
The provisions of Hinduism and the norms of customary law have
proved the ability and eectiveness of social and state regulation for a long
time and have shown the possibility of harmonious coexistence with the
norms of positive law.
We believe that the adoption of the Constitution and the codication
of Hindu law does not detract from the role and importance of Hinduism
and customary law but expands the subjective rights, obligations,
and opportunities of Hindus, giving them freedom and equality in an
independent sovereign state.
Conclusion
We analyzed the signicance of Mohandas Karamchand Gandhi, the
leader of the national liberation movement of India, in gaining independence
from the colonial rule of England, and the subsequent adoption of the
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Artem Arturovich Serdyukov
Constitutional foundations and principles of the formation of a sovereign, secular, and democratic
state in India: history and modernity
Constitution, reecting his political and legal views, and codication and
unication of Hindu legislation. We consider it necessary to note that, when
studying the constitutional foundations and principles of the formation of
India, Part 3 of the Indian Constitution is of considerable interest. It is
devoted to the fundamental rights of Indian citizens, equal employment
opportunities, as well as protection of some subjective rights concerning
freedom of speech outside of religion.
We consider it relevant to note the prohibition of discrimination
based on caste, religion, race, and gender, provided for in article 15 of the
Constitution of India. When establishing the prohibition of discrimination,
the legislator, rst of all, had in mind representatives of the untouchable
caste class, restrictions to which were distributed both on a caste and
religious traditional basis, and were carried out on a racial basis.
Investigating the issue of the institution of untouchability in the
constitutional foundations of India, it is necessary to refer to the provisions
of article 17 of the Constitution. It includes the declarative formal abolition
of the existing untouchability and its practice in any manifestations and the
actual prohibition of the use and indication of any legal restrictions based
on untouchability, which in turn were recognized and sanctioned by the
state as crimes strictly punishable by law (Sen, 1976).
The above-mentioned articles of the basic law of India, as well as the
codied normative legal acts supplementing them, and judicial practice
have had a signicant impact on the formation and development of the
personal law branch, creating the constitutional foundations and principles
for the reform of personal legal systems.
In this connection, the norms of personal law had to comply with
generally accepted public order, morality, norms of morality and universal
public health (Harrow, 2005), as well as, accordingly, other provisions of
Part 3 of the Indian Constitution, which also provided an opportunity to
make any innovations and changes by the legislative method.
This possibility was provided for by the provisions of article 246 of
the Constitution, in list 3 of annex 7 of which the issues of regulating the
institution of marriage, divorce, probate, minors, the united family, and the
possibility of dividing it, that is, listing those areas of public relations that
were regulated by the norms of personal law, were, in turn, referred to the
general joint competence of the union and the states.
Thus, in the process of studying and analyzing the fundamental principles
of the formation and development of a sovereign, secular, and democratic
state in India, we concluded that political and legal views, their direct active
implementation in Gandhi’s state activities, in particular, the reformation
of the caste system in public the structure of India, the statement about the
unequal and unfair position of the untouchable caste, the need to provide
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equal rights, freedoms, and opportunities for all members of society and
the state, the establishment of gender equality, and the prohibition of early
marriage were the prerequisites for the adoption of the 1950 Constitution.
The adoption of the basic law of the state and several above-mentioned
amendments to it determines a new historical stage in the formation of an
independent sovereign democratic state of India. Despite the criticism of
several provisions of the Constitution, justied by the prevailing importance
of traditions and customs in the regulation of public and state life, the
actual impossibility of implementing constitutional principles in the real
life of India, we believe that the acquisition of political independence and
the consolidation of democratic principles is a signicant progressive step
both for the state itself and for its citizens.
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www.luz.edu.ve
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Esta revista fue editada en formato digital y publicada
en diciembre de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 71
