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As I reflect on the Constitution, I am immediately reminded that I am older than the Constitution of India and hence consider it my privilege to reflect not just on the last 40 years but on the 75 years of the Constitution. As a lawyer, I have lived and worked under the Constitution and consider myself one of its Founding Daughters. As a citizen, as a professional, and as a woman, I have used the Constitution as a refuge, a shield, and a sword not only for those I represent but also for myself. Hence, I would like to make a few observations cutting across these different identities.
First, the Constitution is not just a legal document but also a political one, and hence it must rightly be at the centre of all political discourse. Second, every public political controversy is necessarily also a constitutional and legal controversy, and hence it must be at the centre of all discourse in court. The Indian Constitution distributes functions between the executive, the legislature, and the judiciary, but it endows the Supreme Court and High Courts with the power of judicial review, a power that enables them to declare any action of the executive or the legislature unconstitutional. Following the court’s ruling in Keshavananda Bharati in 1973, the court can even strike down a constitutional amendment on the grounds that it violates the basic structure of the Constitution. It is for this reason that the Supreme Court of India is considered one of the most powerful courts in the world. And, as a woman, the Constitution has enabled me to be the person I am thanks to the guarantee of non-discrimination based on sex.
Since judges are drawn from among lawyers, the legal profession is very powerful. The fact that the Constituent Assembly was dominated by lawyers is well known. The truth is that, even today, it is lawyers who dominate, shape, and mould the court, and any evaluation of the Constitution cannot ignore them. It is they who bring causes and issues to the court for decisions, and the strategies they adopt often determine the outcome. Often, they are bound to the courts through relationships built at the Bar and through family, and this does complicate an objective and thorough critique of the court. The best critics of the court are, therefore, often found outside the courts.
There can be no comparison between the lawyers who worked for the framing of the Constitution and those of today. While those in the freedom movement rarely practised law in the courts when they took up elected office, today’s lawyers are often elected or nominated to Parliament and are also full-time practitioners of law. Another new and troubling issue is that judges of the Supreme Court and High Courts accept political office from ruling parties seamlessly and with no “cooling-off” period, raising critical questions about the independence of the judiciary. This undermines the legitimacy of their judgments and of the court, which then begin to be analysed in retrospect with motives attributed. The only solution can be a ban on post-retirement appointments of judges to political or other offices of profit.
Constitutional moralityWith these observations, let us look at how the arc of “the moral universe” has been bending. This understanding can only be arrived at once we agree on what we mean by constitutional morality. For many of us, the actual answer can be found in the Preamble, which captures the idea of India. Hence, the balance sheet of the functioning of the Constitution and the judiciary must demonstrate the ability to stay true to the values of the Preamble. We, the people, should be able to say that the organs of state power have functioned under the safe harbour of constitutional morality. Primarily, this means that the state itself must live by the rule of law, not by the abuse of law, and respect freedoms and rights. It is a sad commentary on our times that far from seeing an expansion of liberties and freedoms, we see the abuse of law rather than the rule of law in operation.
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But let us begin at the beginning. In the early years, the courts were dominated by issues of agrarian reform and the abolition of zamindari systems. All land reform laws were challenged, but fortunately, the Directive Principles of State Policy, which mandate the States to redistribute material resources of society to best subserve the common good, prevailed, and all such laws were upheld. Also visible in the early years were disputes over reservations for the Scheduled Caste (SC) and the Scheduled Tribe (ST) communities, with the dominant castes challenging them alleging reverse discrimination. The Supreme Court resolved the controversy by putting a 50 per cent upper limit on reservation in public employment. Reservation for the Other Backward Classes (OBCs) were upheld but had to remain within the 50 per cent limit. This, however, has not resolved the issue of reservation for promotions, notwithstanding the constitutional amendment permitting it.
One of the most important issues emerging before the courts is reservation for OBCs who happen to be Muslim. They have long been denied reservation in the false belief that it would fall under a “religion base”. The evidence is to the contrary, as they satisfy all the requirements of OBC identity, namely social and educational backwardness. The issue remains unresolved.
The nationalisation of banks was another milestone in Indian constitutional history, and the Bank Nationalisation Act was upheld in 1970, in Rustom Cooper. It is a different matter that as time passed, with the liberalisation of the economy, once again banking is being encouraged in the private sector.
November 26, 1949: Dr Rajendra Prasad, the President of the Constituent Assembly of India, signing the full text of the new Constitution of the Indian Republic, as passed by the Constituent Assembly, in New Delhi. | Photo Credit: The Hindu Archives
Disputes over the right to property come to a head mainly at the behest of well-endowed religious establishments until the fundamental right to property itself was abolished and made a constitutional right in 1978.
But let me address the most important article of the Constitution and its journey through 75 years. It reads as follows: “No person shall be deprived of life and personal liberty except by procedure established by law.” The battle to protect life and liberty from arbitrary deprivation began with the very commencement of the Constitution. In 1950, A.K. Gopalan challenged his preventive detention as being contrary to the right to life and liberty. His lawyer, the visionary M.K. Nambyar, argued that it was not enough to have a law authorising preventive detention, but the law must also be a reasonable law. “Procedure established by law must be reasonable, just, and fair and not arbitrary.” An early Supreme Court, unsure of its own power to do justice, disagreed and held that so long as there was a law authorising detention, it was sufficient compliance with the Constitution and upheld the detention. This was one of the earliest setbacks for the right to life and liberty.
The EmergencyMeanwhile, the Emergency declared in 1975 was upheld in ADM Jabalpur, which held that the right to life could be suspended during an emergency, marking the complete denial of the right to life and personal liberty. It has been said that this has been the lowest point in our constitutional history, and perhaps it was so at the time. The damage was undone when the Janata government came to power and the 44th Amendment was passed, making it impossible to suspend the right to life during an emergency. The political process undid what the judicial process had done.
Later, A.K. Gopalan too came to be undone in the Maneka Gandhi case decided in 1978. She was being denied a passport to travel abroad. The court held that the right to travel abroad was a fundamental right, and it was not enough for the state to argue that there was a Passport Act in place that enabled the denial of a passport. The law itself must be reasonable.
It was not until the mid-1980s that the rights of the subaltern, bonded labourers, construction workers, pavement dwellers, and hawkers came to be addressed by the courts. It was the time for implementing social and economic rights. Many observers have said that this was the Supreme Court’s way to retrieve its tattered legitimacy after ADM Jabalpur.
At the same time, thanks to the women’s movement, issues of women’s safety and protection from abuse came to be addressed by the courts. Dowry deaths were recognised as an aggravated form of murder. However, when women invoke the law to prohibit cruelty in the matrimonial home, they are told they are “misusing the law”. This leads me to conclude that courts have no concern for the living woman, but at the same time, they are morally outraged when they see a dead woman because dead women are safer to deal with.
There have been many low points in the treatment of human rights in our jurisprudence, one stark instance being the denial of rights to the victims of the Bhopal gas tragedy. This December marked the 40th anniversary of the disaster. The case is one of the biggest failures of our legal system, with the demand for justice unresolved to this day. There has been no successful prosecution of Union Carbide or its successor company and officers to date. The groundwater in the region remains unfit for human consumption. The plant is still standing, waiting to be incinerated. The health of the victims and their progeny continues to be deeply impacted. The Supreme Court must take full responsibility for having accepted an unfair and unjust settlement behind the backs of the victims. No apology has been forthcoming from the court for this legal letdown, nor has been there any effort to make amends.
As new and emerging rights make their way into the Constitution, such as the right to privacy and Internet freedom, a surveillance society simultaneously arises, threatening our freedom through government control over what we think, say, and do. A Broadcast Bill is now in the making, which is intended to curb the freedom of expression. How the Supreme Court will respond is anybody’s guess.
Governance and democracy have been reduced to a number, with “resort” politics followed by defections allowed to reign unchecked. The anti-defection law introduced by the Tenth Schedule of the Constitution is a complete failure in preserving the sanctity of the vote.
As for federalism, I have always wondered whether a Prime Minister can campaign for his or her party during State elections. In my opinion, no. He or she is the Prime Minister of India, not the leader of a party, and hence cannot campaign for the party.
Congress MP Priyanka Vadra and Leader of the Opposition Rahul Gandhi, accompanied by opposition MPs, holding the Constitution while protesting at the Parliament premises in New Delhi on December 6. | Photo Credit: ANI
Sadly, we live in times where there is a deep difference between the values of the Constitution and those of the government of the day. This has undermined the very idea of India found in the Preamble. Those of us who continue to cling to the secularism of the Constitution are either “anti-national” or “appeasing” minorities.
The abuse and misuse of criminal law continues unabated. Those protesting against the Citizenship (Amendment) Act have been accused of being “terrorists” under the Unlawful Activities (Prevention) Act, a tool to put away dissenters. Prosecution is selectively unleashed against those who oppose government policy, even as those in the government who make provocative speeches leading to communal violence go scot-free.
Similarly, when the courts allow the digging of mosques to look for temples beneath them, they are allowing the digging of the Constitution of India. The courts have failed to respect their own judgments in this regard, which have entrenched secularism as a basic feature of the Constitution. At least one commentator has now asked the question: are we looking at a civil war in this country? The Supreme Court must take its share of responsibility for eroding the edifice of secularism that it once built.
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A certain comfortable relationship has set in between the executive and the judiciary, supplanting the arm’s length principle that the system of checks and balances requires. This is not to the advantage of the people of India.
The emergence of a New RightDespite all this, the Constitution remains in place. So long as the Constitution exists, the rights of all Indians are protected. But unless the courts and the media are vigilant, a right-wing executive can reduce the normative content of the Constitution to a rope of sand and make it one more document to be kept in the museum of the Supreme Court. A New Right is emerging in the Supreme Court, of which the recently retired Chief Justice of India was a poster boy, which combines economic liberalism with Hindutva ideology.
Equally, there is a new dynamic emerging that is pushing back the New Right through a combination of non-violence and constitutional resilience. Since the A.K. Gopalan case, we have seen a stream of resistance running through the conservatism of the courts and of society. The Constitution, as we know it, will survive. As Martin Luther King, inspired as he was by Mahatma Gandhi, said: “The arc of the moral universe is long, but it bends toward justice.”
Indira Jaising is a senior advocate of the Supreme Court of India.