Seventy ago on November 26, the Constitution of
India was adopted by the Constituent Assembly. The Preamble to the Constitution
of India bears testimony to the historic occasion. However, the Constitution
was only partially adopted that day. The full adoption came two months later on
January 26, 1950 - the day is celebrated as the Republic Day to mark the
anniversary of occasion. Post Emergency, after the then Janata party also
failed to hold on to the government at the centre, there were strong waves of
introspection of the situation that gave place to emergency. The flagrant
violations of human rights at that time, the ADM
Jabalpur decision during emergency when the Court infamously said that
there was no right to life at all when there was emergency in operation, the
memory of supersession of judges and when A.N.Ray was appointed as CJI because
three other judges who delivered the Kesavanada
verdict were found as not towing the government's policies and the
obvious affront to the independence of judiciary that they meant, all conjured
in the minds of the right-minded intelligentsia and particularly the legal
fraternity. Just as the legal professionals took active participation and gave
leadership in the Freedom Movement, some of the prominent lawyers at Delhi saw
themselves donning the role of torch bearers of the ideals of the constitution
and at a meeting of the SC Bar Association, Shri.LM Singhvi who was then President of Supreme
Court Bar Association and who had latter
served as Indian Ambassador to UK
proposed to select 26th November, the
day in which the Constituent Assembly
adopted the draft constitution, as the Law Day. The National Law Day was
celebrated thereafter till 2015. The Government
of India declared 26 November as Constitution Day on 19 November 2015 by a
gazette notification. The Prime Minister of India Narendra Modi made
the declaration on 11 October 2015 while laying the foundation stone of
the B. R. Ambedkar memorial in Mumbai. The year of 2015 was
the 125th birth anniversary of Ambedkar, who had chaired the drafting committee
of the Constituent Assembly and played a pivotal role in the drafting of the
constitution.
The several objectives that were detailed at
the first meeting dovetail to secure a cohesive democracy built on the rule of law. The constitutional vision is
contained in the preamble and the ideals expressed were contained in Part III
containing the Fundamental Rights Chapter. The way the State will proceed to
secure the vision by policies are set out in Part IV of the Constitution. The
role of the student community in preserving and realising constitutional goals
cannot be under-estimated. During the British occupation of India, Gandhiji
involved the youth in the freedom movement in large measure. He had no qualms
about even asking the students to abandon studies to join the bandwagon of
freedom fighters. Writing in Young India Mahatma Gandhi said, “the world produced brilliant students before schools
and colleges came into being. There is nothing so ennobling or lasting as
self-study. Schools and colleges make most of us mere receptacles for holding
the superfluities of knowledge. Wheat is left out and mere husk is taken in. I
do not wish to decry schools and colleges as such. They have their use. But we are making
altogether too much of them. They are but one of the many means of gaining
knowledge.” He expected the students to be brave and courageous. He
said, “Let them realise that learning without
courage is like a waxen statue beautiful to look at but bound to melt at the
least touch of a hot substance.”
Why am I speaking about courage to students?
What is the message that I have for the young students on a Constitution day?
Of the several provisions, the preamble contains the most pregnant expressions
for it truly is a declaration of what we the people of India set for ourselves.
True to the oft quoted expression of the Constitution as a dynamic document
that gives itself to changing aspirations of the people, the preamble underwent
an amendment to include the word “secular” when it said, “We the People of India, having solemnly resolved to
constitute India into a sovereign socialist secular democratic Republic
and to secure to all its citizens, Justice, Liberty, Equality, Fraternity, etc.
There are clouds overhanging our heads that threaten the cherished
constitutional goals and exalted institutions that exist to protect and enforce
these rights. There is an eternal vigil necessary whenever there is an
infraction of these high ideals set forth in this document; or when the
institutions constituted under them are denigrated or when the Constitution is
subverted. It is essential for us to recognise the recent happenings that have
immense constitutional importance. I will cite three instances: (i) dilution of
Article 370; (2) Inability of the State to enforce the judgment of the Supreme
Court or the Court making a judgment has worries about its enforceability and
therefore spares even the executive not to do what it is bound to do and (3)
the way students’ unrest in campuses and the youth power are snuffed out in one
place and protected in another. I am not going to give you answers that I have
secured for myself or the endeavour that I am undertaking but I am flagging
some important signposts that beg for minute attention and informed discussion.
It is essential to know that Article 370 wrote
itself into the Constitution after extensive discussion for more than 5 months
between Jawaharlal Nehru and his colleagues with Sheikh Abdullah and his
colleagues. The State of Jammu and Kashmir is the only
State in the Union of India which negotiated
the terms of its membership with the Union. The Constituent Assembly
merely approved the draft and the Article recorded the fact of a solemn pact.
From 1950, we have fought 3 wars with Pakistan in 1947, 1965 and 1971 and later
the Kargil conflict, all fought on Kashmir. The ordinary person could say that
the festering problem has now been put
an end with the dilution of Art 370. It could be on account of fatigue of what
we have gone through. But for students of law, they must engage in searching
questions that will include, the history
of the Kashmir tangle, the circumstances that lead to incorporation of Art 370
and the transient nature of the provision to be subject to the decision of the Constituent Assembly of Jammu and Kashmir,
remember not the legislative assembly of
the States, constitutionality of the legislative action, the lock down of
normal life in Kashmir, the arrest and detention of all representatives of the
people. A lady who came to the Supreme Court seeking for permission for seeing
her mother was advised by the court to see her mother and return but added
sarcastically, 'do not go around the city in the
cold.'
The decision of the Supreme Court in Sabarimala Case was brought at the instance of
the Indian Young Lawyers Association is important not merely for understanding
the concept of freedom of religion but also whether certain of the practices
form the bedrock of essential religious practices protected under Art 25. What
is equally important also is when there is a judgment approving of women of all
ages to enter the temple, the State was not able protect all persons seeking
entry and when the review was disposed of with a reference to a larger Bench,
the State Home Minister said that the government cannot grant any protection,
for, although there was no de jure stay
of the earlier order, there was a de facto
stay! Justice Rohinton lamented,
Bona fide
criticism of a judgment, albeit of the highest court of the land, is certainly
permissible, but thwarting, or encouraging persons to thwart, the directions or
orders of the highest court cannot be countenanced in our Constitutional scheme
of things. After all, in India’s tryst with destiny, we have chosen to be
wedded to the rule of law as laid down by the Constitution of India. Let every
person remember that the “holy book” is the Constitution of India, and it is
with this book in hand that the citizens of India march together as a nation,
so that they may move forward in all spheres of human endeavour to achieve the
great goals set out by this “Magna Carta” or Great Charter of India.
The third issue is how the students’ unrest at
JNU is seen and commented by the press and people alike and how the hooliganism
of students of Benares Hindu University students who will not learn Sanskrit
from a Muslim teacher goes without comment from the digital media or the
university administration. The former has an intimate Constitutional law angle
from the context of right to education, support for the poor and the bright
students and students belonging to socially disadvantaged sections that the State
is bound to give assistance but would mindlessly increase hostel fees and other
charges several times the existing fees and when resisted, beat them up and
arrest them and at the same time when a brazen attempt to stifle a
constitutional guarantee under Art 16 against discrimination on the ground of
religion is practised, there is no whisper of admonition from the government or
the university administration against the protesting students.
Do not think that democracy is assured by the
fact that elections are held once in five years. In a book by Steven Levitsky
and Daniel Ziblatt titled How Democracies Die, the
authors identity four markers which indicate how democracies degenerate to
authoritarian regimes:
- Rejection of or weak commitment to democratic rules of the game. This would be manifest through rejecting the constitution or express willingness to violate it. They may consist of restricting basic civil or political rights.
- Denial of legitimacy of political opponent. It may manifest by a claim that the rivals constitute an existential threat either to national security or prevailing way of life.
- Toleration or encouragement of violence.
- Readiness to curtail civil liberties of opponents including the media.
They write about Trump’s USA and worry
themselves that Trump answers all the four markers. Raise these questions to
Indian situations periodically, see if we are assured of a working democracy
where human rights of all individuals are respected; whether the press reports
fairly against actions that imperil the safety of the socially, economically
and religiously disadvantaged sections; whether dissent is tolerated or leaders
of opposition are branded as anti-nationals and cases are foisted against them and
whether the perpetrators of violence have state patronage or quick action taken
to apprehend them. Introspect, ideate and engage in active conversations. In
your vigilance lies the sanctity of the solemn Constitution; in your
engagements to question constitutionally
unacceptable practices lie the vibrancy of the rights guaranteed in the
constitution; in demand for adherence to the rule of law by every organ of the
State lies the safety of the institution of democracy.
Address at the VIT University, Law Department on 26th Nov
2019
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