Embarking on a nuanced exploration of Bharat’s constitutional journey will unveil a narrative rich with intricacies, deviations, and ideological struggles. It will unveil a Constitution that has survived, due to its fundamental structure, cuts and blows administered by the very agencies entrusted to preserve it. It will unveil the strength of thought and an academic endeavour that has withstood a better part of the last 100 years, whilst corresponding Constitutions of its time have failed and perished.
There seems to be a narrative that is espoused on an almost daily basis of the need to save the Constitution. A narrative that the basic structure, constitutional morality and values that we hold so sacrosanct are now slaves to ruling political interests. This article, on the occasion of our Constitutional Day, will make a case reiterating the foresight of the drafters of our Constitution and our judiciary. This article will endeavour to trace the attempts at harming our Constitution and its structure that have been made by the very agencies that once side-lined, for political interests, the same Constitutional values that they now pretend to defend.
LANGUAGE AND THE CONSTITUTION
Do political interests supersede the will of the Constituent Assembly?
In the nascent years of the Constitution, a pragmatic language policy took centre stage, notably mandating English as the official language for a strategic fifteen-year period. Article 343(2) of the Indian Constitution mandated the use of the English language for official Union purposes for the initial 15 years from the Constitution’s commencement on January 26, 1950. Following this transitional period, Article 343(3) empowered Parliament to enact laws specifying the continued use of either the English language or the Devanagari form of numerals for designated purposes, providing a constitutional framework for linguistic transition and flexibility.
The spirit of such incorporation of the Devanagari script and the recognition of Sanskrit’s significance was deliberated before the Constituent Assembly and the ensuing discussions stand as a testament to the framers’ dedication to preserving Bharat’s cultural mosaic. Dr Ambedkar’s proposition, supported by luminaries like Acharya Kripalani, aimed to celebrate and safeguard Bharat’s rich cultural heritage. However, subsequent deviations from this visionary intent prompt disquieting reflections on the political motivations that have steered a departure from the original constitutional vision.
The political class that led the previous government, often vocal in criticising the present government for alleged Constitutional transgressions, conveniently overlooks its tainted legacy in Constitutional misadventures. The Governments formed after the expiry of 15 years in 1966 never followed the Constitutional mandate under Article 343 (1) to use the Devanagari script for official purposes.
To this effect, when the present Government sought to introduce the Bharatiya Nagrik Suraksha Sanhita, Bharatiya Nyay Sanhita and the Bharatiya Sakshya Bill, the opposition and a leading lawyer MP shared dissent notes against that very mandate, claiming that the title must be in English.
When the previous Governments found it convenient they sought to subvert the Constitution to satiate their vote bank and now are the self-proclaimed defenders of its sanctity.
42ND AMENDMENT, EMERGENCY & THE CLOSED DOORS OF JUSTICE
In the midst of the Emergency proclaimed by the Government headed by Mrs Indira Gandhi, the Constitution of India was amended perversely through the 42nd Amendment. The amendment sought to legislate the reduction of the power of the Supreme and High Courts, it created Fundamental Duties for the citizenry and introduced into the preamble “socialist”, “secular”, and “integrity”. The 42nd Amendment granted powers to the President in consultation with the Election Commission to disqualify members from the State Legislatures – a power earlier vested with the Governor of the State. The transgression of the most damaging value was the grant of unfettered power to Parliament to amend the Constitution, in effect nullifying the judgment of the Constitutional Bench of the Hon’ble Supreme Court of India in the Kesavananda Bharti case.
The insertion of the term “secular” into the Preamble of the Indian Constitution through the 42nd Amendment, enacted during the Emergency in 1976, has been a subject of considerable debate and scrutiny. At its core, the amendment purported to emphasise India’s commitment to secularism, a principle integral to the nation’s constitutional ethos. However, a nuanced examination of this amendment’s circumstances unveils political expediency and questions its necessity, particularly in light of Dr BR Ambedkar’s stance during the Constituent Assembly debates.
One of the primary contentions surrounding the 42nd Amendment is its perceived role in consolidating vote banks. Critics argue that the insertion of ‘secular’ was a strategic move to align with perceived secular sentiments and garner political support. The hasty nature of its enactment during the Emergency limited public discourse, raising suspicions about whether the amendment’s primary motive was to serve immediate political interests rather than fortify constitutional principles.
Dr BR Ambedkar, the chief architect of the Constitution, had asserted during the Constituent Assembly debates that the Constitution was inherently secular. His argument contended that the term ‘secularism’ need not be explicitly stated in the Constitution, as the entire constitutional framework, with its emphasis on fundamental rights and equal treatment, inherently embodied secular principles. The subsequent insistence on incorporating ‘secular’ into the Preamble raises questions about the necessity of such an amendment when the constitutional fabric was designed to be inherently secular. Dr Ambedkar further argued that such a proclamation was not necessary to be added to the Constitution, for it would restrict the social choice of the people, subvert liberty and the right of the people to choose to constitute themselves in a fashion they democratically elect.
The very act of introducing a “mini-constitution” in 1976, at a time when opposition leaders were imprisoned, is seen as part of a larger construct of political persecution as it was devoid of democratic legitimacy, stakeholder consultation and due process. That was the time when elections were suspended and the doors of the Court and powers of judicial review were shut to the public at large. The passing of the amendment in the Lok Sabha was made within a week and subsequently rushed through the Rajya Sabha for ratification by States and approval of the President.
The infamous ADM Jabalpur case, officially titled “Additional District Magistrate, Jabalpur v. Shiv Kant Shukla”, represents a seminal chapter in India’s legal history, profoundly intertwined with the principles of Fundamental Rights and constitutionalism. This watershed moment unfolded against the backdrop of the Emergency (1975-1977), a period marked by the suspension of various Fundamental Rights, including the sacrosanct right to life and liberty, through constitutional amendments spearheaded by Prime Minister Indira Gandhi’s Government.
Central to the case was the challenge posed to detentions executed under preventive detention laws during the Emergency. The crux of the matter hinged on whether individuals retained the ability to seek judicial intervention, particularly through the writ of habeas corpus, despite the suspension of specific
Fundamental Rights. In a majority decision, where the bench was divided with a 4:1 ratio, the Supreme Court asserted that during the Emergency, individuals were temporarily barred from approaching the courts to enforce fundamental rights, even those as fundamental as the right to life and liberty. This stance essentially posited that, in the face of infringements upon fundamental rights, no legal remedies were available through the judicial system during the Emergency.
A noteworthy dissent in this judgement emanated from Justice HR Khanna, who emerged as a solitary champion of civil liberties. Justice Khanna emphatically contended that, even amidst a state of Emergency, the right to life and personal liberty could not be entirely abrogated, emphasising the enduring significance of shielding individual freedoms. Alas, the Government and the majority of the Court differed.
ARTICLE 370 & DEPRIVATION OF CONSTITUTIONAL PROGRESS
The aftermath of the 1947-48 invasion of the erstwhile State of Jammu and Kashmir by Pakistani forces saw then PM Jawaharlal Nehru’s decision to push in Article 370 as a temporary provision in the Constitution. While well-intentioned, this move backfired, transforming Kashmir into a complex terrain where anti-national elements and terrorists found sanctuary.
In the relentless pursuit of preserving national unity, the constitutional emphasis on ‘Fraternity’ assumes paramount importance. This spirit of common brotherhood serves as a bulwark against regionalism, linguism and communalism. A closer examination unveils a disconcerting trend where the foundational principles of the Indian Constitution were compromised for the sake of short-term political gains.
While the rest of Bharat progressed through laws and judgements that granted dignity of living, granted a path towards self-actualisation, a path towards the life guaranteed by our Constitutional promise, Jammu and Kashmir was a status quo ante to 1947. The progressive laws on triple talaq and the journey from Shah Bano to Shayara Bano did not give emancipation to J&K women. The progressive interpretation in Navtej Johar did not grant rights to Kashmiri gays. The judgements of Justice[s] Iyer and Bhagwati in the PIL revolution of India did not grant socio-economic rights and remedies to the Kashmiri poor.
It is the present Government which, while facing criticism both domestically and internationally, moved beyond political myopia and electoral gains and sought to ensure dignity of living for the J&K people as guaranteed by the Constitution. It is the present government that sought to ensure that the Constitutional promise gleaned from our Constitution ensured the flourishing of the people of Jammu and Kashmir.
CONCLUSION
As Bharat stands at a crucial juncture of its democratic aspirations, the resonance of its Constitutional values becomes paramount. The challenges posed by political factions demand not just scrutiny but a steadfast commitment to fortifying the Constitutional order. Simultaneously, the previous governments’ missteps underscore the imperative of foresight, prudence, and an unwavering dedication to Constitutional principles.
Navigating these complexities, Bharat must tread forward, drawing lessons from its Constitutional past that is riddled with missteps, ensuring that its Constitutional compass remains unwavering, and its course is defined by sagacity, resilience, and a commitment to democratic standing. In this delicate dance between history and Constitutional destiny, Bharat’s journey continues, shaped by its Constitutional roots, and guided by the aspirations of its diverse and dynamic populace.
The previous government sought to subvert the Constitution at its convenience. The very act of introducing a “mini-constitution” in 1976, at a time when opposition leaders were imprisoned, was devoid of democratic legitimacy, stakeholder consultation and due process
There is a populist misrepresentation of the need to save the Constitution. The very propagators of this myth once had power, and they used it for their corrupt ends. The Constitution is a robust document that has survived beyond its contemporaries as a magnificent instrument of social contracting a billion people. We have a judicial system that is a staunch defender of this instrument.
This Constitution has survived the attempts of Emergency, the attempts of political exigencies and vote bank politics taking centre stage. It needs no saving. I have faith in the Constitution and the Courts. I suggest we all do.
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