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Keynote: At the Inaugural Function of the Golden Jubilee Celebrations of the
Constitution
by Justice A.M. Ahmadi, Chief Justice of India
Cite as : (1997) 2 SCC (Jour) 18
Your Excellency Dr Shankar Dayal Sharma, President of India, Hon'ble Shri H.D. Deve Gowda, Prime Minister of India, Shri R.K. Jain, Shri Rajiv Dutta, Shri Kailash Vasdev, President, Vice-President and Secretary of the Supreme Court Bar Association, Hon'ble Members of the Constituent Assembly who are present amongst us, Hon'ble Judges, past and present, Members of the Bar Association, Invitees, Ladies and Gentlemen,
I feel deeply honoured to have been invited to speak on this historic occasion, the completion of fifty years since the first sitting of the members of the Constituent Assembly. I am deeply grateful to the President and the Members of the Supreme Court Bar Association for having done me this signal honour and I must congratulate them for having taken the initiative to celebrate this rare occasion in the history of our Nation. Within a few years from now the Republic of India will celebrate fifty years of the existence of our Constitution; the event will be a fitting tribute to the sagacity, wisdom and foresight of the Framers of the Constitution. Those great visionaries, we are fortunate to have some of them in our midst today, succeeded in engrafting into one document, the values and policies which would guide the destiny of our nation. We are fortunate to be in this Hall to celebrate the Golden Jubilee of the constitution of the Constituent Assembly.
Fifty years ago on this day, the 296 members of Constituent Assembly met for the first time. It was the fulfilment of a cherished hope. Recording the event in his diary, Shri K.M. Munshi, wrote "A Great day for India has dawned". Today we have assembled here to commemorate not only the first day's proceedings but to pay our tribute to the great masters who with their great vision and missionary zeal undertook the task of giving India a Constitution which could support and protect the new-born nation. Ours was the longest written Constitution of the world till Yugoslavia showed the temerity to break our record. But what makes it great is not its length but the fact that it has given the largest democracy of the world a parliamentary system which is unique for the continent of Asia, particularly in the post-Second World War period.
The document speaks volumes for its authors, but it does not do full justice to the Framers since it does not reveal the adverse atmosphere in which they had to work. In the initial days the validity and authority of the Constituent Assembly itself came to be questioned. The conflict between the two powerful parties, viz., the Congress and the Muslim League, had introduced some weakness to the body. There were problems about the merger of the Princely States as well as the future of the country as a member of the Commonwealth. These were complex issues. It was the first ever exercise undertaken in the country to find solutions to these complexities. The task set before them was enormous. Yet the atmosphere was of# hope because there was confidence in the assemblage of remarkable men and women who were competent enough to bring diverse views together and who had the wisdom to discern the best out of them.
Every Constitution has a historical background. It is history that shapes a Constitution. Our Founding Fathers had the experience of the British Rule in India. Besides being inspired by their experiences during the freedom movement, they had the benefit of the basic concepts emerging from the three major revolutions - the proclamation of "Liberty, Equality and Fraternity" in the French Declaration of the Right of Man; the proclamation that "all men are created equal" in the American Declaration of Independence and the pronouncement "from each according to his ability and# each according to his needs" in the Document of Faith of the Russian Revolution. In addition to these historic documents, were the Magna Carta, the Constitutions of various other countries including the Government of India Act, 1935 which together constituted the basic material to commence the task of Constitution-making. On this basic material these wise men - nine of them are amongst us today and we thank them for honouring us by their august presence - set about their task in right earnest to draw up the Constitution of free India. While the emphasis of the French and the American documents was on individual rights and in particular those concerning property, the thrust of the Russian document was essentially on eradication of social and economic inequality and the upliftment of the standard of living of the masses. These ideologies, though different, provided the base material to our Constitution-makers.
While our Constitution-makers were deliberating on what framework they should adopt for the Constitution of free India, the nations of the world were busy elsewhere in# drawing up a Charter of Universal Human Rights. On 10-12-1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights committing themselves to respecting, defending and upholding the fundamental human rights and freedoms of all people. This historical landmark provided an additional input to our Constitution-makers in deciding on the framework of our Constitution. It may not be out of place to mention that this document manifests the conflicting ideology of the outcome of the three revolutions to which I have referred earlier. This is evident from the fact that Articles 1 to 21 of the Declaration relate to individual basic rights whereas Articles 22 to 28 relate to socio-economic rights. Our Constitution-makers were greatly influenced by these historical documents and that is why you notice a similar dichotomy in our Constitution; in that, Part III entitled "Fundamental Rights" emphasises on individual rights and freedoms while the other rights touching the welfare of the people generally are relegated to Part IV entitled "Directive Principles of State Policy" and expressly made non-justiciable. The object of the Directive Principles is to embody the concept of a welfare State in our Constitution.
Let us also recall the social, economic and political state in which the people lived and their aspirations which had to be realised. The masses perhaps assumed independence to be a magic wand which they thought would bring an end to all their miseries overnight. But the elders and the experts did know that independence brought us to the threshold of both fulfilment and predicament. The concept of independence was intertwined with that of democracy. This concept of democracy had to be spelt out in clear terms and had to be realised in concrete form. The wave of socialism was strong but it meant different things to different people. On the one hand there was the prime responsibility of keeping the country together and to protect its sovereignty and integrity, on the other hand every section of the people looked for social, economic and cultural progress. Different pandits professed different roads to achieve the social revolution the country had been waiting for. With the threats of partition looming over the sub-continent, the political atmosphere was full of uncertainty and anxiety. It is against this backdrop that we have to value the work of the Constituent Assembly.
The Constituent Assembly was a truly representative body in that it had members from all the regions as well as from all the different ideologies. It worked for three long years building the great edifice of our Constitution, brick by brick. The record of the Constituent Assembly Debates depicts how meticulously each clause and sub-clause of every proposed resolution was examined with precision and how the members, transcending their individual opinions deliberated to come to a consensus aiming to produce a perfect piece of legislation.
It is not necessary to recall the salient features of the Constitution before this learned gathering. But what I cannot omit to mention is the tenacity and perseverance of the members of the Assembly and the honesty of intention depicted by each member. Even while they debated to force what each considered the right way to legislate, perfect cordiality was maintained despite the fact that on certain occasions views of the members were diametrically opposite to each other. The debates which are recorded precisely and truthfully show the high quality of the debates and make a very enjoyable reading and present a fine example of accommodation of views which we should do well to emulate. It is a scintillating experience to see how consensus can be arrived at through democratic discourses without compromising on principles. What made it possible was their deep affection for the country, respect for each other's point of view, true concern for the people and unflinching faith in India's destiny. Despite the serious nature of the exercise they depicted a fine sense of humour. I bow again and again to the men and women of that august body whose enormous powers of head and heart combined so beautifully. The nation is grateful to them.
When we talk about the Constitution it is important to realise that the Constitution though by itself an important document is after all cold print on a piece of paper. There is no magic in words and phrases, what is important is the system it seeks to introduce and the way the system works. The Constitution, no matter how well crafted it is, will not be able to deliver the goods unless the system which it introduces functions effectively to realise the dreams of the Constitution-makers. I am reminded of the beautiful words of Georges Bidault, who said:
"The good or bad fortune of a nation depends on three factors: its Constitution, the way the Constitution is made to work, and the respect it inspires."
The experiences of some other countries which acquired freedom after the Second World War proves the point. The Constitutions of many of them contained glittering phrases and noble promises conferring liberties and granting rights to their people. Many such democracies have faded away while many others are struggling to survive. The Constitution of the erstwhile Soviet Union which promised rights and liberties also collapsed because it had little to do with the structure of power it created. In contrast, the British have no written Constitution, Parliament is Supreme, yet it is a country where democracy has thrived and the functioning of the system based on the rule of law is healthy. We have adopted the British democratic pattern and we have so far been reasonably successful in the working of our democracy, a few hiccups notwithstanding.
Whatever be the situation in other countries, in our country, except for the controversial emergency period, the constitutional government has functioned reasonably because we have tried to enforce the constitutional provisions and the laws. Some of the enforcement has come through courts by means of "judicial review". The courts are not the only guardians of the constitutional system, but they are a powerful instrumentality and an important one for that. In our constitutional system courts are a strong force to be reckoned with and when we talk of the Constitution as a living law it is usually understood to refer to the doctrines and understandings that the courts have invented, developed, spread and applied to make the Constitution work.
This basic fact of our constitutional system need not be stressed any further. The constitutional law begins outside the courts, it begins when a constitutional right is asserted. It is only when the authorities refuse to recognise it that the issue enters the portals of the courts. The Constitution being the suprema-lex, every institution created under the Constitution is expected to respect its command and no organ or instrumentality of Government, not the President, not Parliament, not the man in uniform, not even the Judge, can ignore it. Its words are law which every State instrumentality must respect and enforce. The courts are guardians of the Constitution, though not the only guardians, and upon them the Constitution rests the responsibility to check unconstitutional behaviour and enforce the constitutional mandate. As I said, courts are not the only guardians of the Constitution, in fact every instrumentality under the Constitution is charged with similar duties and obligations, courts are just the last resort.
Undoubtedly the Constitution is the supreme law. The function of the higher courts is not limited to exploring what the Constitution-makers meant when they wrote those words. The Constitution cannot be a living and dynamic instrument if it lives in the past only and does not address the present and the future. Only the naive can believe that the role of the courts under the Constitution is merely to interpret the words, nay they go far beyond interpretation, they expand constitutional doctrines, some of them are connected to the text by gossamer threads. Since the courts in India have been invested with immense powers, it has been criticised by some as "counter-majoritarian" on the plea that non-elected Judges upset the decisions of the elected representatives, while some scholars and politicians think the courts have gone too far and must exercise "restraint". They would like the courts to confine themselves to what the Constitution-makers actually meant. But is it possible to ascertain what they meant and what meaning they had assigned to a particular word in 1950 and must that word or expression mean the same thing at all times regardless of changing times and situations? After another fifty years will the Judges still be carrying out the exercise of digging out what meaning was assigned to a word a century back! That perhaps is the surest way to kill the Constitution and be wedded to the status quo. The world changes - should not the judiciary try to make the Constitution work in changed circumstances? The Constitution is a permanent document, it has always been understood as a living law, it is our function to pump life into the cold print of the Constitution and keep it vibrant at all times.
The criticism of "counter-majoritarian" is an old one. This is the criticism levelled in America since Chief Justice Marshall first exercised this power in Marbury v. Madison1. Despite the same our Constitution-makers consciously invested the courts with that power. That should be a sufficient answer to the criticism on that count.
There is however some force in the view that courts must while exercising the power of judicial review exercise "restraint" and base their decisions on some recognised doctrines or principles of law so that their decisions do not appear to be based merely on their ipse dixit. While addressing the members of the Bar on Law Day, 1996 that is what I said:
"Under the Constitution, wide powers are conferred on courts and, therefore, a corresponding, heavy obligation is placed on the Judges to exercise jurisdiction with utmost care and caution, so as never to give the impression that they are viewing things upon preconceived notions. Care has to be taken at all times to ensure that the discretionary jurisdiction is exercised on the basis of well-defined and consecrated legal principles, and at no time during the course of the proceedings should an impression be given that the Judge has yielded to spasmodic sentiments, or is carried away by emotion or bias. He must so handle the proceedings that even the respondent at the receiving end goes with the feeling that he has had a fair trial. Fairness is the hallmark of judicial process which also guarantees impartiality."
This is just to say we are conscious and constantly remind ourselves of the need to exercise judicial restraint. That does not mean we should not act where the circumstances call for interference; act we must but with judicial propriety and restraint.
Our Constitution begins with the words "We, the people" and speaks of certain solemn resolutions made while giving the Constitution to ourselves. The first is to set up a democratic republic. We have been fortunate in achieving this important objective. Democracy has survived in India against all odds. It has left many countries which did not give India much hope because of its diversity gasping in admiration. Full marks to the people of India for this achievement.
The second promise we made was of Justice in all its hues, social, economic and political. The achievement or failure to realise this goal must be viewed in two parts. In the first two decades after the Constitution, the initiative was taken solely by the Government which introduced many legislations and schemes to bring about social reform and to ameliorate the conditions of the poor and the downtrodden. The dichotomy between the justiciability of Fundamental Rights and non-justiciability of Directive Principles helped the vested interests to challenge reforms which interfered with their fundamental rights but did not permit courts to implement the rights falling in Part IV because of the express provision in Article 37. This led to a continuous struggle between the status quoists and the progressive groups. The Court's move in expanding the meaning of the term "life" in Article 21 opened the door for rendering some of the social rights in the Directive Principles as a fundamental right bearing on the quality of life. It was through this process that the right to free education to children until they complete 14 years came to be recognised and enforced.
Unfortunately the poverty amelioration schemes introduced by the Government from time to time have misfired. The blame is rested for this failure on the shoulders of those charged with the duty to implement and execute the schemes. A disgusted and frustrated former Prime Minister had to confess that hardly 19 paise of a rupee actually reaches those for whom the schemes are meant. What a sad commentary on those responsible for eating away the morsels meant for the poor. The remedy can only be stringent action against those responsible for the same. Social Justice has not been translated into a reality because of such large-scale swindling of funds meant for the poor and the downtrodden. In recent times this has surfaced in an ugly manner and it is to be hoped that we will learn from these experiences and find ways to uplift the poor and the deprived. When will we achieve the objective mentioned by Pt. Jawaharlal Nehru when he said while addressing the Constituent Assembly:
"That future is not one of ease or resting but of incessant striving so that we might fulfil the pledges we have so often taken and the one we shall take today. The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will not be over."
Unless we realise the goal of social justice our constitutional mandate of transforming our society into a just and equal society and in eradicating poverty will not be answered. Unfortunately after making the directive principles not justiciable, presumably because the Framers of the Constitution were aware that the prevailing socio-economic conditions were not ripe for their implementation in the near future, the Government did not appoint any high-level body to take a periodical review with a view to finding out if the conditions were ripe for implementing any of those rights. The right to education to children up to 14 years was denied due to economic constraint but at no time an exercise seems to have been undertaken to ascertain if that constraint had ceased to exist till the Court was forced to interfere to enforce the same. Half-hearted laws for implementation of directive principles and the inertia shown by the policy-makers and executioners of the schemes is largely responsible for our failure to achieve the objective of social justice. I think it is time that a high-level committee is appointed to periodically review the situation with a view to ascertaining if the economic constraint which did not permit implementation of any directive principle still exists and if not, recommend implementation thereof.
I have confined myself to a few aspects because of constraint of time. Thank you for your time. Once again, I thank the organisers. Let us hope for a brighter future for our people. We must resolve to work hard to achieve the constitutional objective of social justice.
Thank you. Jai Hind.
- 1 Cranch 137 : 2 L Ed 60 (1803)
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