According to Prof. Strauss, Constitutional Theory tries to draw upon bases of agreement that exist within a legal culture and to extend those agreed-upon principles to resolve more controversial issues. Widespread Agreement/Moral Agreement/Social agreements and Precedents helps to come on to a conclusion for interpreting the constitution. A constitutional theory tries to organize these and other points of agreement in a way that prescribes results in cases where there is no agreement. Constitutional theory is an effort to justify a set of prescriptions about how certain controversial constitutional issues should be decided. For example, the interpretation of the word “law” under Article 13(2) vis-à-vis the Parliament’s power to amend the Constitution under Article 368, which followed a series of cases like Sankari Prasad Singh Deo v. Union of India, Sajjan Singh v State of Rajasthan, I.C. Golak Nath v. State of Punjab, Kesavananda Bharati v. State of Kerala.
The classical Indian traditions had a different conception of both rule and law compared to modern Western traditions. While the constraining power of legality is central to modern Western traditions, in India it is the moral authority that is at the core of the rule of law. As Andre Beteille said, “Whatever might have been the emphasis of traditional Indian culture, both equality and the individual are central concerns in the contemporary constitutional and legal systems; and it is impossible to understand what is happening in India today without taking into account the Constitution, law, and politics.” Our legal culture agrees on most of the fundamental matters but, on the abstract level, probably everyone agrees that the Constituent Assembly’s intentions count for something, although there is of course a great deal of disagreement on multiple issues. Constitutional theory helps us to understand Supreme Court decisions and helps us to cope with the elaborate and often conflicting opinions of the Justices. Solution for such disagreements has been sought out in Preamble or through the interpretations of Directive Principles, or by doctrinarism approach resolves contemporary constitutional controversies by interpreting past precedents, or by Political Culture, Social and Moral Culture altogether influencing the Legal Culture.
In the case of India, it is much more complex due to the Diversity, Population, Literacy and Education, and Political Culture influencing other cultures around it. Here, Political Democracy (Political Culture) heavily influences the Legal Culture. A fine example would be, beef ban from Northern Indian Culture is swiftly capturing the Southern and the South Eastern states. Another example of recent times could be statutes passed by different State Governments on Anti- Conversions, allegedly to curb Love Jihad. It is certainly true that the boundaries of the legal culture are not clearly defined. And limiting the search for agreement to the legal culture does seem to privilege an elite priesthood of lawyers over the population at large.
A constitutional theory prescribes something about the results a legal system should reach in controversial cases. Our legal culture is characterized not just by widespread agreement on certain legal judgments but also by dynamic political culture. The social and political structure of any country is dynamic and constitutional theory provides the directions to align legislations with the on-ground realities (living tree doctrine). Hence, a good constitutional theory must adequately be in sync with the volksgeist.
Constitutional theory aids us in comprehending how a doctrine came to be and how it could change in the future. For example, the basic structure doctrine. It tells what should prevail in case of conflict. For example, the prevalence of constitutional morality in cases like Indian Young Lawyer Association & Ors. v. State of Kerala (2018), Navtej Singh Johar & Ors. v. UOI, etc. Thus, we can have a better understanding of constitutional law if we can obtain some insight from the perspective of constitutional theory. Drawing conclusions on the basis of the agreement that exists in the legal culture is becoming more and more difficult due to increased polarization by the political culture. Hence, the presence of constitutional theory is most needed in present times. Constitutional theory matters to constitutional practice, and hence to judicial decisions of our country which leads to transcendent and immanent qualities for our national political life.
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