Tuesday, November 26, 2019

Constitution Day Address at Law College, VIT University


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:
  1. 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.
  2. 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.
  3. Toleration or encouragement of violence.
  4. 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