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Constitution Of India - The Nation's Safety Valve

The Constitution of India is the cornerstone of a liberated nation. Constitution of India is the soul of our country India - the Union of States. It is supreme lex of India. It is a symbol of Unity in Diversity. It is a treasure of national heritage. It is the sacred gospel of our nation containing the aspirations of We the People of India' and is aimed at strengthening the unity, integrity and harmony of the nation. It lays the grand foundation of a great people's political edifice of governance.

It projects the socio-economic vision of a generation emerging from a feudal culture, colonial domination and federal negation. It spells out the fundamental rights and socialistic aspirations of the vast masses long inhibited by an imperialist ethos. It creates a trinity of democratic instrumentalities with checks and balances, parliamentary in structure, quasi-federal in character.

Endowed with adult franchise, empowered with periodic elections, provided with plural Parties, equipped with a unitive justice system with a uniquely Supreme Judicature at the Apex which gives access to every citizen against injustice, the political structure of the billion-strong Indian humanity is a paradigm of secular, socialist, democratic Republic.

An independent Judiciary, an accountable Parliament at the Centre and like Legislatures at the State level, a powerful Election Commission and fearless, critical Comptroller & Auditor General provide a paramountacy of democracy, at once responsible and responsive. Judicial review of State action, public finance auditable by a constitutional authority, obligation to seek fresh mandate through general elections with adult franchise, accountability, direct and indirect, to the people in several ways - these are fundamental in the governance of the country.

The people, though free, have fundamental duties mandated by Article 51-A of the Constitution of India to exercise which, as in cases of environmental and ecological preservation, compassion for living creatures, protection of the value of composite culture, the authority of judicial writ power may be moved in aid. In the words of Dr. Ambedkar, winding up his speech moving the passage of the Draft Constitution.

I feel that it (the Constitution) is workable, it is flexible and it is strong to hold the country together both in peace time and in war time. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is, that Man was vile.

Stability does not mean immutability. Times change. Social conditions are altered by various factors. Each generation may differ in values from a previous generation. Therefore, realism dictates flexibility which implies amenability.

Therefore, Article 368 of the Constitution of India vests power in the Parliament to amend the Constitution but with more rigorous procedures than in passing ordinary legislation. Indeed, amendment of the Constitution, necessary in certain circumstances, has been provided for, blending pragmatism with special safeguards, avoiding rigidity, but facilitating flexibility. It must be remembered that a mere majority cannot be allowed to tamper with the Constitution. Why? There are certain great values, which our founding fathers have regarded as paramount and inviolable.

If those values can be jettisoned by a majority of Parliament a fanatical majority or absolutist party commanding huge numbers in the House may destroy democracy, secularity, independence of the Judiciary and the Rule of Law itself. All institutional safeguards and safety valves may become ephemeral, unless basic values are put beyond Parliament's power to truncate.

So it is that we have, as settled by constitutional law, re-enforced by [Keshavananda Bharti Vs State of Kerala, AIR 1973 SC 1461], [Indira Nehru Gandhi Vs Raj Narain, AIR 1975 SC 2299]; [S. R. Bommai Vs Union of India, AIR 1994 SC 1918] and other cases, the doctrine of basic structure of the Constitution which is beyond mutation by the plenary power of the Parliament.

Thus, the great fundamentals are immunised; at the same time variable values can be given validity by appropriate amendments. What are the basic features of the Constitution are outside the pale of amendment? The Rule of Law, for instance is one; equality before the law and is another; secularism is third; Judicial Review is fourth. Even federalism and supreme sovereignty are substantially inviolable.

India is a pluralist society with a large Hindu majority with subsidiary caste minorities, and a number of religious minorities with separate identity. To preserve our democracy and the confidence of the minorities, safeguards need to be incorporated and wisely therefore, protection and reservation for minorities, autonomy for religious communities and freedom for linguistic groups find a heaven in the Constitution of India. Dr. Ambedkar, in the Constituent Assembly, has defended the provision of reservation and other safeguards.

To die-hards who have developed a kind of fanaticism against minority protection I would like to say.....one is that minorities are an explosive force which, if it erupts can blow up the whole fabric of the State. Therefore, he argued for a tolerant majority with respect for minority rights.

He quoted Grote, the historian of Greece:

The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispensible condition of a Government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendency for themselves.

By constitutional morality Grote meant - a paramount reverence for the forms of the constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action, subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the constitution will not be less scared in the eyes of his opponents than in his own. (The Framing of India's Constitution Vol. IV Page 428).

A great safety value of Human Rights, constitutionally inscribed, is the power of judicial review even to the extent of correcting and invalidating executive and legislative excesses by binding writs. Articles 13, 32, 226, 136, 141 and 142 are some of the vital provisions which grant access to the people to move the Court and seek redressal against injustice. Be you ever so high, the law is above you.

This proposition must be read with the power of the independent judiciary., viz, the law is what the Judges say it is. Since judicial review is basic feature of Constitution of India, the citizen has inalienable power to defend himself/herself. Of course, what are basic features depends on the pronouncements of the Judiciary in their wisdom. Judicial independence is itself a basic feature of the Constitution.

Judiciary and National Interest

The Constitution of India has created a Democratic Republic and a trinity of instrumentalities to enforce its paramount provisions without fear or favour, affection or ill-will. The Executive echelons, when they exceed their power as inscribed and circumscribed in the Supreme LEX, are subject to scan, scrutiny and correction by the higher Judiciary.

The Legislature has vast law-making powers and is functionally competent to perform an inquest into the Administration. But when it transgresses its constitutional bounds the Court can quash its action by writs or command fresh operation by appropriate directions. However, Judges, vested with considerable power, are oath-bound by the Constitution of India to decide within its prescriptions and proscriptions of Law, without violating jural parameters and performing with exemplary good behaviour.

Judicial bounds of dignity and propriety are real and noble. Judicial integrity and judicial independence are Constitution avowed mandate. Judicial pronouncements reflect society's changing outlook, but, of course, within the permissible limits of constitutional compatibility. For Justices of the Higher Judiciary national interests is paramount, and promote, on occasions, national interest through judicial process. It opined though a judgment cannot be a solution to all the problems, but for governmental lawlessness Judiciary is the only repository of the confidence of the We The People Of India.

Supreme Court of India's expounding philosophy related to judicial process seems to be the philosophy of the seamless web of Judgeship and Judge that has diamond-hard parameters, which are symptomatic of functional excellence. This is the 'basic feature' of the judicial process, which works on faith, confidence and acceptability of the We The People Of India by developing the inner strength of morality and ethics in those who work with it. In the backdrop of the above, a modest attempt is made to analyze the genesis, philosophy and contours of experimental-transformative jurisprudence ingrained in its judgments which contribute to the systematic, methodological, and scientific, and scientific evolution of expounding the Constitution of India with multifaceted dimensions, viz,

  • What is that expounds the Constitution?
  • What rules of interpretation are followed in expounding the Constitution What are those evinced principles of Constitutional Law of India, which are immutable evolving expounding the Constitution?
  • What are those principles, which evolve The Conceptual framework of Fundamental Rights, Directive Principles of State Policy and Fundamental Duties; Jural Postulates of Correlatives and Opposites?


Election Commission

In our democratic system, the strongest safety valve to protect our freedom is the exercise of adult franchise, whereby, every person, above age of eighteen years has the right to cast his/her vote at the General Election held obligatorily by an independent Election Commission. This power of the people is the ultimate sanction to control the Executive and the Legislature.

In Churchill's famous words:

At the bottom of all tributes to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric discussion can possibly diminish the overwhelming importance of the point.

In the Cabinet System, the Council of Ministers must command a majority in the House. This sanction is a protection against authoritarian regime. The historic Indira Gandhi's debacle, after the Emergency span, demonstrates how effective elections are as a safety valve.

Freedom of Speech

Human freedom is the life blood of personality of a person which is contributory to the enhancement of the growth of a nation and its foundational values for the growth of the democracy. The founding authors of the Constitution of India were conscientious of the inherent value of freedom and, therefore, recognized the gravity of right to freedom because of the reminiscing on the callousness of foreign governments suppressing the freedoms of the Indians. Freedom is imperative for the welfare of society. With time these constitutional guaranteed freedoms have evolved and have become the heart and conscience of the Constitution of India.

The Supreme Court in [Keshavananda Bharti Vs State of Kerala, AIR 1973 SC 1461] expounded the constitutional freedoms and fundamental rights to be the foundational values of Basic Structure of the Constitution of India and the Parliament of India was held powerless to destroy these constitutional foundational values. Constitutional freedoms and the basic fundamental rights are indeed essential for the progressive growth, advancement of an individual and the Indian nation. Right to freedom together with justice, equality and liberty is the cornerstone of Indian nation.

Article 19 of the Constitution of India originally encapsulated seven freedoms which were called as the rainbow of Freedoms. Freedom of property was deleted by 44th Constitutional Amendment. Six freedoms under Article 19 of Constitution of India continue to be the rainbow of freedoms even after the eclipse of freedom of property, because right to property continues to be a constitutional right vide 44th Constitutional Amendment i. e Article 300A of Constitution of India. Article 19 (1) (a) of Constitution of India guarantees to every citizen freedom of speech and expression which includes the freedom of the Press and Media - Print, Electronic and Social Media - Right to Know or Right to Information.

Freedom of expression, which covers freedom of the media, is a constitutional guarantee which properly exercised, will empower, as the Fourth Estate. the political opposition in the country and make Part III of the Constitution of India (Fundamental Rights) a living reality. Parties play a vital role in the operation of the democratic order. Even if a plurality of parties form Coalitions or Fronts they are answerable to the House and the House itself., functionally powerful, is a sentinel of people's liberty and an incorruptible responsive and responsible Government. The pity is that our legislatures are not functioning meaningfully and are lost in 'sound and fury signifying nothing.'

Directive Principles Of State Policy and Fundamental Duties

Directive Principles of State Policy enjoined in Articles 36-51 of Constitution of India are in the nature of 'Social Policy', They are in the form of policy directions to the State to move for the overall welfare of the people. They are aimed to achieve the goals of 'Welfare State' based on the utilitarianism and social engineering principles of the maximum happiness or interests of the maximum number of people with least friction.

They cast a duty on the State to apply these principles in making laws. It is the duty of the State to formulate its social policies in such a way that social and economic justice is translated realistically and factually and the people of India nourish a feeling of having access to justice. They cast obligations on the State to promote social and economic rights of the people of India.

Though they are not enforceable or non-justiciable in Court of Law., but, nevertheless, they are fundamental in the governance of the country. The authors of the Constitution of India aspired and cherished that the State shall strive to achieve these objectives of Welfare State through the guidelines prescribed in the Directive Principles of State Policy.

The genesis of Directive Principles of State Policy was explained in the Sapru Committee Report, 1945 as follows:

We have come to the conclusion that in addition to these fundamental rights, the Constitution should include certain directives of State Policy which, though not cognizable in any Court of Law, should be regarded as fundamental in the governance of the country.

Be that it may, it is said that the inspiration to incorporate non justiciable Directives of State Policy in the Constitution of India was the Irish Constitution which reads as under;
The principles of social policy set forth in this Article (Article 45 of the Irish Constitution) are intended for the general guidance of the Oireachtas. The application of those principles in the making of the laws shall be the care of the Oireachtas exclusively, and shall not be cognizable by any Court under any of the provisions of this Constitution.

As these directives were pious obligation?

In the words of Dr. B. R. Ambedkar the nature and ambit of these directives of State Policy are:
In enacting this Part of the Constitution, the Assembly is giving certain directions to the future legislature and future executive to show in what manner they are to exercise the legislature and executive power they will have. Surely it is not the intention to introduce in this Part these principles as mere pious obligations.

It seems that these Directives of State Policy are not mere pious obligation, but they are to be translated in law to achieve the ends of justice, namely, social justice, economic justice, political justice, distributive justice and access to justice; they are in the good governance of the country; they show the path of working with the Constitution; they are directives in the furtherance of economic democracy to fulfil the cherished and avowed principles of social as well as political democracy. Social and political empowerment is only possible if there is economic empowerment of the people of India.

Fundamental duties being basic human rights of all citizens encapsulate the fundamental obligations of the State to its citizens. Fundamental duties are the duties/obligations of the citizens to the State. These constitutional duties are moral obligations of all the citizens of India to help to promote a spirit of common brotherhood, patriotism and to uphold the unity and integrity of India. The Directives Principles of State Policy are moral obligations of the State in framing and passing laws based on policy perspectives or fundamental guidelines for good governance promoting fraternity, unity and integrity of India and human dignity.

The conceptual framework of jural postulates has been a proprio vigore highlighted in [I. R. Coelho Vs State of Tamil Naidu, AIR 1999 SC 3179]. The Supreme Court emphasized that to destroy the guarantees given by Part III in order to purportedly achieve the goals of Part IV is plainly to subvert the Constitution by destroying its Basic Structure. Fundamental Rights occupy a unique place in the lives of civilized societies and have been described as 'transcendental', 'inalienable' and primordial. They constitute the arc of Constitution of India.

The goals set out in Part IV of Constitution of India have, therefore, to be achieved without the abrogation of the means provided for by Part III of Constitution of India. Anything that destroys the balance between the two parts will ispo facto destroy the essential element of the Basic Structure of the Constitution of India.

The Constitution of India is a social document and economic instrument. Secularism is a guarantee and socialism is an imperative of our Republic. In this context, Part IV and IV-A of Constitution of India deal with Directive Principles fundamental in governance of the country as well as the provisions regarding the Fundamental Duties, if taken seriously, will ensure life, liberty and the pursuit of happiness of every Indian's basic birthright.

Conclusion
The salvation of Swaraj - every Indian human's Right to Dignity, development and democratic voice - depends on the creative, sensitive, sarvodaya spirit of our constitutional order.

It is well to remember the oft repeated passage from the last speech of Dr. B. R. Ambedkar in the Constituent Assembly on November 25, 1949 to the following effect:
I feel, however, good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of the Constitution does not depend wholly upon the nature of the Constitution.

Dr. B. R. Ambedkar further added;
The Constitution can provide only the organs of State such as the legislature, the executive and the judiciary. The factors on which the working of those organs of State depends are people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave? Will they uphold constitutional methods of achieving their purposes.....

The ultimate safety valve of our Republic rests, vests, in the last analysis, in the practical wisdom, social active and collective comity of We the People of India.

Constitution of India is neither a seasonal document nor an experiment, but is a permanent textual document and expounded that binds the posterity for ages to come.
What will matter are not your memories, but the memories that live in those who loved you. What will matter is how long you will be remembered, by whom and for what.

Justice and Expounding Philosophy Nature


YATO DHARMA STATO JAYA.


This is the Emblem Of Justice Of The Apex Court Of India and corpus juris of Vidhi (law), Nayaya (Justice) and Yukti (Natural Reason, Logic and Equity), Vidya (Knowledge) sits supreme that binds human beings and all manifestations of Law, Life and Literature (LLL). Ii is entrenched as the principle of expounding the Constitution that binds the posterity or future or future generations for ages to come.

Expounding principle signifies that our Constitution text is not a seasonal document; it is a permanent document; it is not static like dead wood; it is dynamic and a living organism since it seems to have acquired legitimacy as a highest norm of public law, The reading of the deliberations of the Founders of the Constitution recorded in the Constituent Assembly suggests that it is impossible as well as impracticable to suggest that they intended the Constitution itself to suggest answers to the manifold problems that they would confront succeeding generations.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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