*Tracing and Celebrating the journey of our Constitution through landmark decisions and important Constitutional Concepts.
I write to you today on the anniversary of a momentous event : the anniversary of the adoption of our Constitution. Earlier celebrated as Law Day, 26th November was last year rechristened as ‘Constitution Day’ in the honour of our constitution and its prime architect Dr.B.R.Ambedkar.
67 years back, on this very day, the founding fathers of the nation subscribed to this remarkable document by signing the same and the people of India adopted the Constitution of India; a document of hope and aspirations for teeming masses of India. A document that now gives identity to over a billion people.
Looking back, this fundamental law of the land was the result of the unremitting hard labour of extraordinary legal minds, who were brains of great distinction and were directly involved in the difficult struggle for freedom. Having felt the denial of basic human rights first-hand, their fight was directly for the rule of law, equality, justice, dignity and fraternity. They had a vision for India; they wanted to ensure social, economic and political justice for all, equality before the law, guaranteeing the dignity of the individual which would go on to ensure fraternity amongst the masses, and thereby – the integrity of the nation.
No law making exercise in the entire human history has surpassed the making of the Indian Constitution in terms of its sheer scale and herculean effort involved in it. The makers had a huge challenge in front of them. The Constitution had to provide succour to a nation whose voice was supressed for long and which was trying to overcome the scars of the partition. Independence had come at great cost, and the constitution was to prove a balm to the suffering masses. From the very inception, major historians and political scientists had predicted out early demise as a nation, saying that : with fault lines on every level like caste, class, religion, language – the nation would not survive for long. Our constitution had the momentous task of balancing these various conflicting interests, and at the same time provide a blue print for the progress of the nation. In a remarkable balance of sorts, it had to provide for historical redress and future progress at the same time. It had to provide the governance structure and constitutional ethos to the largest democratic experiment in the world. Much to the dismay of our doomsayers, we have survived and have succeeded, at least in a fair measure, with a very promising future on the horizon.
Without further ado, let me try to take you on a brief journey of this fantastic Constitution through some landmark cases and constitutional concepts, close to my heart.
Students, to begin : A Constitution is the Supreme Governing principle in the life of a nation. All executive, legislative and judicial acts have to derive and trace their validity to this ultimate norm. A Constitution ‘constitutes’ the nation and therefore, at once recognises and creates an identity. It also works as the Mirror of the Society, reflecting its essential values and mores. Since it is the constitutive document of a nation, it has to be interpreted not drily or literally but purposively, with a view to further the grand vision of its makers and to set the country on the right path.
Students, as future judges, lawyers, law enforcers and bureaucrats, you’ll have to ensure that each of your acts align with the Constitution. You’ll take the oath to uphold the Constitution of India. Therefore, the values of ‘Constitutionalism’ should inspire every action of yours. The Constitution, in its fundamental features is supreme and inviolable and each organ of governance has to abide by its ethos. The Constitutional identity should sustain. You have to also ensure that all functionaries develop healthy practices and act in the spirit of the Constitution, even in the absence of specific constitutional edict on that point. A ‘Constitutional Positive Morality’ should inform the working of the nation and ‘Constitutional Identity’ should be preserved.
Students, this principle of ‘Constitutional Identity’ was at the heart of what is inarguably the finest constitutional judgment in India, and arguably, the world. Before discussing that decision, it would be appropriate to set out briefly the context in which it came : Soon after independence, the government, in order to achieve its goal of social justice, initiated a series of land reform legislations, seeking to abolish Zamindari and redistribute land on more equitable principles to the teeming masses. This ideal was inspired from the Social Justice objectives of our Constitution, clearly reflected in the Directive Principles of the State Policy which mandated the State to endeavour to minimise inequalities of income and prevent concentration of wealth. These Directive Principles, though not justiciable at the reckoning of the individual (unlike Fundamental Rights, which were so justiciable), were nonetheless fundamental in the governance of the country and the making of laws. These land reform legislations were challenged by the land-owners on the ground of violation of their Fundamental Rights, especially the right to property. This apparent tussle between Fundamental Rights and Directive Principles shall go on to change the balance of power in the Constitution and sow the foundation of a sublime Constitutional Jurisprudence in India.
In order to overcome this, Certain constitutional amendments were introduced by the Parliament with a view to immunise the land reform legislations from judicial review on the ground of being violative of fundamental rights. The constitutionality of these amendments was challenged in various decisions including Shankari Prasad v. Union of India(1951) and Sajjan Singh v. State of Rajasthan(1965), however, it was held that a constitutional amendment is a superior law and immune from challenge on ground of violation of fundamental rights. The Hon’ble Supreme Court, till this point, gave a go-ahead to the government to carry out its soci0-economic measures.
It was in Golak Nath v. State of Punjab (1967) that the Supreme Court overturned this position and held that constitutional amendments were ‘law’ within the meaning of Article 13 of the Constitution of India and, therefore, no constitutional amendment could violate any of the fundamental rights, regardless of the fact whether these amendments were introduced to sub serve the Directive Principles, or not. Therefore, fundamental rights were given an apparent primacy. This decision was largely criticised as a stumbling-block for land reform measures of the government. To minimise the damage and to prevent existing reforms from being undone, the SC in this case, also imported the US concept of ‘prospective overruling’ and held that amendments already carried out were immune from challenge, however, future amendments shall have to conform to the mandate of Article 13 and ensure compliance with the Fundamental Rights of the Constitution. This was an eleven judge bench decision.
The decision brought land reform legislations to a grinding halt and constrained the government of the day to bring in some amendments with a view to overcome the ratio of Golak Nath (supra). The Amendments sought to make Constitutional Amendments immune from challenge on ground of violation of Fundamental Rights. They also desired to make clear the airs on the principle that : there were no inherent limitations on the amending power of the Parliament, over and above procedural limitations expressly laid down in Article 368.
These constitutional amendments were meant to give the government a free hand to implement all its land reform legislations. Some balance was, therefore, clearly required with a view to ensure that in the attempt to usher social justice, the identity of the constitution and the fundamental rights of the citizen were not altogether disregarded and set at naught.
The Hon’ble Supreme Court had the occasion to strike this balance in the landmark decision of His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another, 1973 (4) SCC 225, Date of decision : 24th April, 1973, (13 judges bench). Though there is a large body of literature and extremely erudite books have been written on this one case alone and a small blog like this cannot do justice to the breadth of this decision, I shall still try to encapsulate, albeit in brief, the essence of the case, for the benefit of students. In this case, the SC by a wafer-thin majority of 7 : 6 held :
a) that the Constitution is Supreme and the Constituent Power of the Parliament is a derivate power and not a constituent power (as available originally with the Constituent Assembly) and, therefore, this power is hedged by limitations.
b) The Power to Amend is not an unbridled power. The constitution post-the amendment should STAND amended. Meaning thereby, that the constitution should retain its essential identity even post the amendment and should not be twisted or modified beyond recognition.
c) The doctrine of implied limitations was also enunciated by the SC to hold that no amendment can be allowed to destroy the essential parts of the constitutional identity; its basic features, its core philosophy and its eternal values.
d) The court repelled the contention that philosophy of ‘Basic Structure’ is vague. Drawing analogy to the principles of natural justice, the court held that merely because something cannot be cut and dried into a strait jacket, that is, by itself, no ground to deny its existence.
In the final analysis, the Court held that : though the fundamental rights by themselves were not immune from amendment, the core philosophy behind them cannot be tampered with, by way of an amendment. Therefore, though an amendment may, hypothetically, reframe Article 14, however, if the amendment has the effect of hitting at the core of ‘Social Justice Philosophy’ of our constitution, it will run-foul of the doctrine of ‘Basic Structure’ and will be open to challenge. To further illustrate the point, it may be noted that the Government can make additions in the three legislative lists, but cannot abrogate all the lists as it would abrogate the federal structure, which is an essential part of our ‘Basic Structure’.
Students should know that the concept of ‘Basic Structure’ was inspired from the work of a German jurist Professor Dietrich Conrad and we owe a huge debt of gratitude to the erudite Scholar. It also deserves noting that, following Kesavananda Bharati (supra), many countries have been influenced by its masterly exposition by the Indian Supreme Court.
It is also interesting to note that the seeds for the “basic structure” principle were laid in 1964 itself, by Justice J.R. Mudholkar in his dissent in the case of Sajjan Singh v. State of Rajasthan. Justice Mudholkar wrote : “It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?”. This exposition, students, was indeed way ahead of its times and luckily found adoption in Kesavananda Bharati (supra).
One more point that is important to be flagged here is that the agency of declaring as to what are the ‘basic features’ of the Constitution was retained by the judiciary, which has, over the last couple of years, preserved principles such as : free and fair elections, independence of judiciary, separation of powers, supremacy of the constitution, judicial review, secularism, social justice, amongst others, to be a part of the Basic Structure. The doctrine of Basic Structure, therefore, ensures constancy of the Constitution in its essence, and flexibility in deciding what constitutes that ‘essence’ in view of changing circumstances and helps the courts rule as to what can be termed as a part of ‘Basic Structure’ at a particular time, keeping in mind the fact that ours is a living constitution.
The concept of basic structure has since been further developed by the Hon’ble Supreme Court in subsequent cases, such as Waman Rao v. Union of India (AIR 1981 SC 271), Bhim Singhji v. Union of India (AIR 1981 SC 234), S.P. Gupta v. President of India (AIR 1982 SC 149) (known as Transfer of Judges case), S.P. Sampath Kumar v. Union of India (AIR 1987 SC 386), P. Sambamurthy v. State of Andhra Pradesh (AIR 1987 SC 663), Kihota Hollohon v. Zachilhu and others (1992 1 SCC 309), L. Chandra Kumar v. Union of India and others (AIR 1997 SC 1125), P. V. Narsimha Rao v. State (CBI/SPE) (AIR 1998 SC 2120), I.R. Coelho v. State of Tamil Nadu and others (2007 2 SCC 1), and Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha and others (JT 2007 (2) SC 1).
Interested Students should read the subsequent decisions of M.Nagaraj v. Union of India (2006) and I.R.Coelho v. State of Tamil Nadu (2007) where certain tests were laid down to check infraction of basic structure principles. The tests of ‘over-arching’ principles, ‘Rights test’ and ‘Synoptic View’ make for interesting reading and are highly recommended. These doctrines advocate a broad-based view of our constitution, instead of a narrow and pedantic outlook.
By virtue of the decision in I.R.Coelho (supra), even laws put in 9th Schedule can be examined by the court on the anvil of violation of Basic Structure, after Kesavananda Bharati (supra).
Moving on, post Kesavananda Bharati (Supra), certain amendments were again introduced to give a general primacy to directive principles over fundamental rights. This attempt was shot down by the Supreme Court in Minerva Mills v. Union of India (198o) on the premise that the harmony between DPSP and Fundamental Rights is the bedrock of our constitution and constitutes its ‘Basic Structure’. This way, the Supreme Court again made the remarkable contribution of harmonising DPSP with Fundamental Rights. DPSP have often since been used as aids in the interpretation of Fundamental Rights and calibration of public and private interests. In the same vein, Fundamental Duties were also used by the Supreme Court as important considerations in the interpretation of Fundamental Rights. (Interested Students may see : Union of India v. Naveen Jindal (2004) This way a coherence and workable system was put in place to balance the jural relations running across DPSP, Fundamental Rights and Fundamental Duties, all recalibrated to serve the constitutional goals. This reaffirms that Fundamental Rights and Duties are the means to an end, the end being a society based on certain normative ideals, which are amply reflected in the DPSP. So read, a true student of the constitution will never find them at cross purposes with each other and will always be able to harmonise them.
Another area of the Constitution which is remarkable in its pithiness, but profound in its scope is the ‘Preamble’ of the Constitution. Preamble of the Constitution has been framed with great care and deliberation and reflects the high purpose and noble objectives of the Constitution Makers. It is the very soul of the Constitution. Every word in the preamble and its specific positioning has a special significance. It goes to the credit of the founding fathers that each concept is a noun as well as an adjective. The preamble was finalised after the third reading of the constitution and is a succinct manifestation of its Basic Structure (without itself being the basic structure!). Each Student should read and master the preamble and inculcate its values. The mastery of the preamble is most amply manifested in the ‘Trinity of Justice, Liberty and Equality’ which derive their meaning and content from each other and cannot be read separately. This trinity ultimately goes on to encourage ‘fraternity’ which keeps a nation together and translates into the integrity of the nation, while ensuring the dignity of a single individual. A student should be able to feel the preamble in his/her bones. Students should use this ‘key’ to the minds of the makers to acquire a deeper understanding of the Constitution.
Another sui-generis feature of our Constitutional Jurisprudence is ‘Secularism’. Indian Secularism is different from the western concept of ‘wall of separation’ where religion is totally purged out of civil life. The ‘Wall of Separation’ is essentially a western concept and borne out of ‘dark-age phenomenon’. India never had such a phenomenon; Religion has always been an essential part of our lives and there has never been a move to totally side-line it. We are not anti-religious or non-religious but always multi-religious, cherishing our plurality and brotherhood. Therefore, instead of the negative connotation of ‘total separation of state from religion’, our constitution has a positive dimension which encourages religious pluralism, where each religion is avowed and respected. Infact, the State automatically assumes a positive and pro-active role in the Indian Concept of Secularism. It does not have to just remain neutral; rather, it has to play a positive role of promoting mutual respect and fraternity, even in matters of religion. Teaching of religious tenets of major religions, is, therefore, not anti-secular, but pro-secular, if seen in the correct perspective. Similarly, teaching of Sanskrit, also, therefore is not anti-secular it being the fountainhead of major Indo-European Languages and important in understanding different religious philosophies. The idea of Indian Secularism is to do away with religious apathy and divide and promote greater understanding and interaction across religions, which will ensure awareness, respect and tolerance. Though it is true that there is no state religion and no disabilities are attached with respect to any specific religion, however, the state’s obligation does not end by ensuring non-discrimination, but it has a positive mandate to encourage mutual brotherhood amongst all religions. Protection to Religious Minorities is also guaranteed under the Constitution to ensure each religion can peacefully profess and propagate its cause, and peacefully co-exist with the other religions. This positive aspect of Secularism in India is best reflected in the phrase “Sarva Dharma Sambhava’, as opposed to ‘Dharma Nirpeksha’. In this regard, one may also note that the contemporary debate concerning removal of the term ‘Secular’ (to our knowledge the term “Secular” was introduced by 42nd Amendment into the Preamble) is also quite academic, as Secularism has been a part of basic structure of our constitution, even prior to the 42nd amendment. The express vision of ‘Fraternity’ and various Articles in the Constitution protecting religious freedoms and minority rights, reflect that ‘Secularism’ has always been a part of our Constitutional ethos. Infact, Secularism has never been and can never be an abstract theoretical concept; rather, it is a ‘way of life’ and that is what the Indian Constitution, through the above, ensures. What also deserves mention is that ‘Secularism’ is not just internal to an individual, but it manifests itself in one’s external behaviour and attitude towards the others, in all walks of life. That is why it becomes all the more vulnerable a concept, and hence the State’s positive role becomes all the more important. This is what the Hon’ble Supreme Court has authoritatively explained in S.R.Bommai v. Union of India (1994) while distinguishing between Religion and Secularism.
Articles 14, 15, 16, 25, 26, 27, 28, 29, 30 are manifestations of this principle and ensure freedom of religion and at the same time protection of minorities, thereby promoting the larger objective of ‘fraternity’.
In a rapidly globalising economy, the Supreme Court by its deft interpretation of the word ‘Socialist’ has also dovetailed carefully : the larger public interest on one hand and interests of the private entity on the other, and thereby tried ensuring the progress of the Nation, on humane and just principles and also in sync with realities of a market economy.
The contribution of the Indian Supreme Court in advancing the cause of Social Justice is also legendary. Article 14 of the Constitution which guarantees the right to equality before law and equal protection of the laws has been interpreted widely to further the cause of ‘substantive equality’ and not a formalistic or legalistic equality. It was recognised early-on that equality can be guaranteed only among equals and equal treatment of un-equals is the very negation of equality. Differentiated treatment to ensure level playing field became important. For the first few years, this was served by adopting the ‘classification test’, where differential treatment could be meted out on account of difference in circumstances and a rational nexus sought to be achieved by that different treatment being constitutionally permissible. However, the classification test, by itself was shown to be insufficient. There had to be a deeper scrutiny of the laws to ensure ‘fairness’. The Supreme Court in E.P.Royappa v. State of Tamil Nadu (1974), and later in Ajay Hasia v. Khalid Mujib Sehravardi(1981) has moved a step ahead from the doctrinaire tests of reasonable classification, and held that : over and above the tests of rational differentia to justify unequal treatments to inequals, the law would also have to satisfy the tests of non-arbitrariness, Natural Justice, Reasonableness and Fairness. This ensured that ‘classification’ is not the ‘be all and end all’ of right to equality and has widened the domain of judicial review.
Infact, in Indira Sawhney v. Union of India (1996), and thereafter in M.Nagaraj v. Union of India (2006), it has categorically been asserted by the Hon’ble Supreme Court that the concept of equality has a larger dimension to it; It has implicit within itself the concept of ‘affirmative action’ and requirement of upliftment and protection of all underprivileged and vulnerable classes. That is where the concept of ‘Positive Discrimination’ and ‘Inclusive Growth’ is found to be implicit in the Constitution and as long as it serves the purpose of developing Constitutional faith and fraternity among the masses, it is the duty of the State to take all positive action in that regard.
Subsequently in Ashoka Kumar Thakur v. Union of India (2008), the Hon’ble Supreme Court has emphasised the need for a classless and casteless society and for promotion of ‘Right to Education’ as the most fundamental of all fundamental rights, imperative in order to do away with any apathy and divide that may have developed in the society or may be developing in the society due to any positive action on the part of the State, particularly, “reservations”.
In a huge boost to the ‘rights principle’ in our constitution, the SC has also held that the state could not curtail fundamental right to life and personal liberty, merely by passing a law on that matter. Earlier, all that was required to curtail the life and personal liberty of an individual was to pass a law on the subject. This apparently satisfied the requirement of ‘procedure established by law’ in Article 21 of the Constitution. Initially, no further judicial enquiry was permissible into the ‘reasonableness of that law’. As a result of this : Though the Government could not by an executive decision throw a certain individual ‘X’ in a cauldron of boiling water, but it could do so by passing a law on the subject, and once that law was passed, its content was almost beyond judicial review. However, the court moved away from this traditional, narrow and formalistic test and successfully imported the wider doctrine of ‘Due Process’ into the Constitution. The Doctrine of ‘Due Process’ allowed the Court to not only look into the procedural vires of a law enacted by the Parliament concerning life and personal liberty, but also its substantive fairness and reasonableness. It is worth noting that the expression ‘Due Process’ was consciously dropped by the Constituent Assembly, in favour of the more passive ‘Procedure established by law’, on the premise that an extensive judicial review will stop the government in its tracks and hurdle the march of progress needed soon after independence. However, the concept of ‘due process’ (originated in US) was brought-in by the Supreme Court of India by reading the same into ‘Procedure established by law’. Now every state action had to be guided in the constitutional spirit, which runs through Articles 21, 14, 19 and the larger principles of natural justice. A law passed to curtail personal liberty under Article 21 would also have to satisfy the tests of Article 14 and 19. This also did away with the narrow mutual exclusivity of fundamental rights. Now, Article 21 not only protected a citizen against executive action but also legislative action. This was the immense contribution in the case of Maneka Gandhi v. Union of India (1978) and a couple of other decisions. These decisions demonstrated that our Constitution was a living document, which can adapt to changing times and the Court rightfully acted as the custodian of that change.
Other areas where the Judiciary served the Constitution is by enlarging the scope of Article 21 to include all the rights (though not expressly mentioned) which go on to serve the right to life, elevate it from animal like existence, in short, make life worth-living. The list of implied fundamental rights read within Article 21 is too numerous and widespread to be reproduced with accuracy.
Another stellar contribution of the Judiciary is the introduction of PIL, which made justice accessible to the disenfranchised and the marginalised. Thus promoting the idea of Distributive Justice, i.e bringing justice to the doorsteps of all. (S.P. Gupta v. Union of India – 1981 and Bandhua Mukti Morcha v. Union of India – 1984)
The Supreme Court and High Courts in recent times have delivered extremely important decisions on Electoral Reforms, Judicial Independence, Freedom of Speech and Expression, Judicial Review, Minority Rights, Legal Aid and Access, Gender Justice and thereby acted not only as reactor to Social Change but as an initiator of progressive Social Change and helped realise the Constitutional Vision.
The District Courts, through its various limbs, have also played an extraordinary role, acting as the first interface of the citizen with the justice system, and thereby discharged a great responsibility. Judges of District Courts throughout the country, have been upholding Constitutional Values and acting as the protectors of Rights of the common-man.
I am ecstatic at being able to contribute, within my limited capacities, to the cause of Constitutional Vision of ‘Justice’ through my Students who are functioning as Judges/Civil Servants/Academicians and Lawyers, throughout the country and strongly upholding the Constitutional Values, by socially responsive judging and constitutionally informed decision-making.
With this, let us celebrate our venerated Constitution today and renew our pledge and commitment to its ideals. I am extremely energised and hope to march-on in this journey of helping mentor more of you into becoming the future custodians of our Constitution.
Once again, Wishing you all A Very Happy Constitution Day !
God Bless you,