70 Years of Indian Constitution
70 Years of Indian Constitution
By Pushkal Garewal
“The constitution of India is not a supreme document, but an institution which governs the length and breadth of the country” - Granville Austin
In this 70 years, construction of the constitution acquainted with many leaps and bounds such as the superiority and the question of amendability of the text in the constitution or the maintainability of right to property as fundamental right, or the skirmish battle between fundamental rights and enumerated DPSP. And some unforgettable; mischief interpretation of the constitutional text by the highest judiciary of the country. The introduction of basic structure and the power of parliament to amend basic texts such as the wordings of preamble was also questioned. Many scholars were in opinion to the addition of words in the text of preamble; Socialist, Secular and Integrity and did so. Some assurance were also made by the drafters of the constitution, as ending of reservation system after 10 years of incorporation of the constitution. But unfortunately for the political correctness and interference it is not yet eroded and envelope in the minds of an individual.
Some amendment also give threat to the basic structure of the constitution such as 24th amendment of the constitution prior to amending the amendment says parliament has power to amend any part of the constitution including the wordings of Preamble but at that time Judiciary took stand and supress the authoritative power and refer it as a “tyranny of elected” and the issuance of judicial review was also measured and under its capacity judiciary declare it as an infringement of harmonious construction and declare it unconstitutional. As amending the Preamble is an infringement of basic structure of the constitution which cannot be compromise by any means.
Some amendment also give threat to the basic structure of the constitution such as 24th amendment of the constitution prior to amending the amendment says parliament has power to amend any part of the constitution including the wordings of Preamble but at that time Judiciary took stand and supress the authoritative power and refer it as a “tyranny of elected” and the issuance of judicial review was also measured and under its capacity judiciary declare it as an infringement of harmonious construction and declare it unconstitutional. As amending the Preamble is an infringement of basic structure of the constitution which cannot be compromise by any means.
validity of 24th, 25th and 26th amendment of the constitution
The second provision made in 25th amendment of the constitution in article 31-C which says if an act passed by the parliament or any state legislature, which starts with, the act is intended to give effect to the directive principles of state policy so no fundamental right shall be challenged. I firmly believe, it will be a doomsday when the basic human rights is taken away from an individual and it was done in the form of 25th amendment of the constitution. Henceforth it is so disastrous to believe that your property is taken by the government but not of some corrupt person and right is violated so you cannot move to the court under this amendment. Then and then it was Judiciary again who uses the power of judicial activism and declare it as ‘ultra vires’ as to take away someone’s fundamental right destroy the norms and basic applicability of the constitution. And if a person goes cannot go to the court stating that this law will not give effect to the directive principle of state policy, even it promote no good to the state. Now, so the 25th amendment will apply which says nobody can raise benefit of question before the court of law. Means you cannot even heard if your fundamental right is violated. This is a contempt of the core provision of the constitution which directly restricting the freedom of an individual which give rise to the absolute power of the government.
Amendment 26th of the constitution talks about the Privy Purse which also means that a person has no right to be heard or he has no right to move to the court against the government. Again this amendment challenges the basic structure of the constitution. When article 24th 25th and 26th read concurrently it can be interpreted that the basic idea of all the three amendment is to take away the basic right of an individual as in 25th and 26th amendment being done and the 24th amendment damages the basic structure of the constitution. But when read the constitution in a way of wisdom the most common interpretation made is the separation of power which is the basic structure of the constitution and provides the check and balance system as the interference of Judiciary strike down all such provision mention in this amendment and declare it as unconstitutional.
The second provision made in 25th amendment of the constitution in article 31-C which says if an act passed by the parliament or any state legislature, which starts with, the act is intended to give effect to the directive principles of state policy so no fundamental right shall be challenged. I firmly believe, it will be a doomsday when the basic human rights is taken away from an individual and it was done in the form of 25th amendment of the constitution. Henceforth it is so disastrous to believe that your property is taken by the government but not of some corrupt person and right is violated so you cannot move to the court under this amendment. Then and then it was Judiciary again who uses the power of judicial activism and declare it as ‘ultra vires’ as to take away someone’s fundamental right destroy the norms and basic applicability of the constitution. And if a person goes cannot go to the court stating that this law will not give effect to the directive principle of state policy, even it promote no good to the state. Now, so the 25th amendment will apply which says nobody can raise benefit of question before the court of law. Means you cannot even heard if your fundamental right is violated. This is a contempt of the core provision of the constitution which directly restricting the freedom of an individual which give rise to the absolute power of the government.
Amendment 26th of the constitution talks about the Privy Purse which also means that a person has no right to be heard or he has no right to move to the court against the government. Again this amendment challenges the basic structure of the constitution. When article 24th 25th and 26th read concurrently it can be interpreted that the basic idea of all the three amendment is to take away the basic right of an individual as in 25th and 26th amendment being done and the 24th amendment damages the basic structure of the constitution. But when read the constitution in a way of wisdom the most common interpretation made is the separation of power which is the basic structure of the constitution and provides the check and balance system as the interference of Judiciary strike down all such provision mention in this amendment and declare it as unconstitutional.
An era of construction; The Emergency Period
Emergency period was a negation of constitution but this period is greatly called as an “era of construction” it was this period which challenges the superiority of intellectual conscience of all the three pillars of the democracy. P.N. Dhar, the former head of Indira Gandhi secretariat writes that from April 14 to May 21, 1971, the war over east Pakistan created 3.5 million refugees, and by December the number reached 10 million, ‘the largest number of refugees ever to cross an international boundary in so short a period.’ Inder Malhotra the close friend of Indira Gandhi suggested her for the two weeks of war with Bangladesh. May be this was the reason for her to proclaim external emergency which she never lifted up till the interference of judiciary was not made. The emergency started when the railway worker went on to strike down the Indira’s Gandhi government. Inder Malhotra the demagogue of Indira Gandhi mentioned that almost 20,000 railway worker were detained under maintenance of security act. He called this era “dress rehearsal for the strike to come.” This period, the parliament passed the law for emergency and thousands of people were detained under preventive detention law, providing that an individual can be detained without knowing him the cause of detention. The great prominent leaders were jailed without any trial and the basic human rights were taken away. On June 25, 1975 parliament passed an order to suspend article 14 which gives right to request the court to enforce equality before the law, article 21 which protects life and property, article 22 which protect against arrest or detention without being informed of the reason and article 19 which guarantees the right of a judge to grant a writ of habeas corpus. Right to life of an individual was taken away, the constitutional machinery was totally failed in the state and India acquainted with the worst side of the tyranny that Indira Gandhi had. In August the 38th amendment was passed which nullify the power of a court from reviewing the President’s declaration of an emergency.
By this amendment it can be interpreted how glibly the totalitarian concept of state tried to setup in a country and gave no way to setup law and order situation in the country which closed all the doors to lift up the emergency. Consecutively 39th amendment was passed deliberately to negate the Allahabad High court decision and put the election of prime minister beyond the judicial scrutiny which also give effect to the media censorship in the country. Almost 1.5 lacs people were falsely detained under MISA into Indian jails without trial and infringing the fundamental right of an individual to have a fair trial. Nine high courts including Madhya Pradesh high court, Allahabad High Court, Karnataka High Court, Delhi High Court, Bombay High Court and the Rajasthan High Court held that it is the right of detenus to be presented with a fair trial and a magistrate to seek a writ of habeas corpus. The Amnesty International encountered the deaths in and out of the jail during emergency period. The executive failed to perform its function as they were handcuffed in their jurisdiction, the total suspension order passed by the parliament that no action can be initiated by the executives under their authoritative power.
Emergency period was a negation of constitution but this period is greatly called as an “era of construction” it was this period which challenges the superiority of intellectual conscience of all the three pillars of the democracy. P.N. Dhar, the former head of Indira Gandhi secretariat writes that from April 14 to May 21, 1971, the war over east Pakistan created 3.5 million refugees, and by December the number reached 10 million, ‘the largest number of refugees ever to cross an international boundary in so short a period.’ Inder Malhotra the close friend of Indira Gandhi suggested her for the two weeks of war with Bangladesh. May be this was the reason for her to proclaim external emergency which she never lifted up till the interference of judiciary was not made. The emergency started when the railway worker went on to strike down the Indira’s Gandhi government. Inder Malhotra the demagogue of Indira Gandhi mentioned that almost 20,000 railway worker were detained under maintenance of security act. He called this era “dress rehearsal for the strike to come.” This period, the parliament passed the law for emergency and thousands of people were detained under preventive detention law, providing that an individual can be detained without knowing him the cause of detention. The great prominent leaders were jailed without any trial and the basic human rights were taken away. On June 25, 1975 parliament passed an order to suspend article 14 which gives right to request the court to enforce equality before the law, article 21 which protects life and property, article 22 which protect against arrest or detention without being informed of the reason and article 19 which guarantees the right of a judge to grant a writ of habeas corpus. Right to life of an individual was taken away, the constitutional machinery was totally failed in the state and India acquainted with the worst side of the tyranny that Indira Gandhi had. In August the 38th amendment was passed which nullify the power of a court from reviewing the President’s declaration of an emergency.
By this amendment it can be interpreted how glibly the totalitarian concept of state tried to setup in a country and gave no way to setup law and order situation in the country which closed all the doors to lift up the emergency. Consecutively 39th amendment was passed deliberately to negate the Allahabad High court decision and put the election of prime minister beyond the judicial scrutiny which also give effect to the media censorship in the country. Almost 1.5 lacs people were falsely detained under MISA into Indian jails without trial and infringing the fundamental right of an individual to have a fair trial. Nine high courts including Madhya Pradesh high court, Allahabad High Court, Karnataka High Court, Delhi High Court, Bombay High Court and the Rajasthan High Court held that it is the right of detenus to be presented with a fair trial and a magistrate to seek a writ of habeas corpus. The Amnesty International encountered the deaths in and out of the jail during emergency period. The executive failed to perform its function as they were handcuffed in their jurisdiction, the total suspension order passed by the parliament that no action can be initiated by the executives under their authoritative power.
Judicial capacity during emergency period
Now the only faith remain with the judiciary after the failure attempt by the individual through elected representatives and the executives. But it is sad to know that even the judiciary lifted their hands up and failed to protect the rights of an individual if the detenus knocked the door of the highest judiciary in the country they closed their door by saying sorry the doors are closed for you.
As damaging the original provision of the constitution the judicial appointment was not made according to the inscribed text of the constitution and the former Prime Minister Indira Gandhi appointed the chief justice A.N. ray surpassing the other three superior judges of Supreme Court. But at that time the bench selection cannot be challenged without a risk of being jailed for the contempt. The bench heading for the judgment after the “Keshavananda Bharti” case includes Justice A.N. Ray, M.H. Beg, Y.V. Chandrachud, P.N. Bhagwati and H.R. Khanna. Now on these five most prominent judge of the apex court the entire validity of fundamental rights and the validity of emergency provision depends. The decision came out with the ratio of 4:1 in which it was only H.R. Khanna who opposed the view of all other four judges of the bench and every other judge had their view in regard with the emergency provision. All other four judges were in favour of emergency provision but H.R. Khanna strictly quoted “fundamental rights are the basic human rights it cannot be taken away by any government of the state, if the era will come when the constitution will not exist even then also the fundamental basic human rights will prevail.” he refused to go with the decision of all other four judge of the bench. Justice H.R, Khanna became a hero after this case, and he is also regarded as the influential vote in the “Keshavananda Bharti” case.
Scholars recognise this as a “darkest hour in the history of judicial period” and to protect and promote the constitutional idea, parliament passed the 44th amendment in 1978, largely nullifying the habeas corpus decision and taking away the power of the president to suspend article 21 i.e. right to life of an individual.
This era of construction of the constitution significantly desires the need of fundamental rights enshrined in the constitution. By the introduction of basic structure of the constitution and amendment power of parliament under 44th amendment again setup “rule of law” in the country. And the constitutional machinery work at its full pace.
Now the only faith remain with the judiciary after the failure attempt by the individual through elected representatives and the executives. But it is sad to know that even the judiciary lifted their hands up and failed to protect the rights of an individual if the detenus knocked the door of the highest judiciary in the country they closed their door by saying sorry the doors are closed for you.
As damaging the original provision of the constitution the judicial appointment was not made according to the inscribed text of the constitution and the former Prime Minister Indira Gandhi appointed the chief justice A.N. ray surpassing the other three superior judges of Supreme Court. But at that time the bench selection cannot be challenged without a risk of being jailed for the contempt. The bench heading for the judgment after the “Keshavananda Bharti” case includes Justice A.N. Ray, M.H. Beg, Y.V. Chandrachud, P.N. Bhagwati and H.R. Khanna. Now on these five most prominent judge of the apex court the entire validity of fundamental rights and the validity of emergency provision depends. The decision came out with the ratio of 4:1 in which it was only H.R. Khanna who opposed the view of all other four judges of the bench and every other judge had their view in regard with the emergency provision. All other four judges were in favour of emergency provision but H.R. Khanna strictly quoted “fundamental rights are the basic human rights it cannot be taken away by any government of the state, if the era will come when the constitution will not exist even then also the fundamental basic human rights will prevail.” he refused to go with the decision of all other four judge of the bench. Justice H.R, Khanna became a hero after this case, and he is also regarded as the influential vote in the “Keshavananda Bharti” case.
Scholars recognise this as a “darkest hour in the history of judicial period” and to protect and promote the constitutional idea, parliament passed the 44th amendment in 1978, largely nullifying the habeas corpus decision and taking away the power of the president to suspend article 21 i.e. right to life of an individual.
This era of construction of the constitution significantly desires the need of fundamental rights enshrined in the constitution. By the introduction of basic structure of the constitution and amendment power of parliament under 44th amendment again setup “rule of law” in the country. And the constitutional machinery work at its full pace.
Amending the Preamble
The original preamble of the constitution was so divine and accurate that only one amendment done in the preamble and it is to be noted that only additional word “Socialist, Secular and Integriy” were added after the 42nd amendment and there is no exclusion in preamble so far. But when the constitutional provision for secularism moved Ambedkar said “Secularism was inherent to the Constitution’s structure and he felt that mentioning it in the preamble would be redundant”. Secularism is going through the every drop part of the constitution and nowhere mention in the constitutional text but only in the preamble. Constitution of India greatly promote the idea of secular state as indirectly it is mention under article 25th of the constitution which says “Freedom of conscience and free profession, practice and propagation of religion” which promote the idea of secularism. Now when the idea of socialist raised in the constitution assembly D.R. Bhim Rao Ambedkar was not in a favour of socialist state as “What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether.”
But after 28 year of independence the socialist word interpreted differently as is favour of the people of India and thus, added in the text of the preamble. And when there is a question of adding the word Integrity in the preamble text no opposition was made and by a majority decision it was accepted that integrity of the nation is as much as important as of the secular and the socialist state. And thus the resolution accepted and these three words were added in the preamble. After the keshvananda Bharti case it was held that preamble of the constitution is the basic structure of the constitution and from then the preamble is an unamendable part of the constitution.
The original preamble of the constitution was so divine and accurate that only one amendment done in the preamble and it is to be noted that only additional word “Socialist, Secular and Integriy” were added after the 42nd amendment and there is no exclusion in preamble so far. But when the constitutional provision for secularism moved Ambedkar said “Secularism was inherent to the Constitution’s structure and he felt that mentioning it in the preamble would be redundant”. Secularism is going through the every drop part of the constitution and nowhere mention in the constitutional text but only in the preamble. Constitution of India greatly promote the idea of secular state as indirectly it is mention under article 25th of the constitution which says “Freedom of conscience and free profession, practice and propagation of religion” which promote the idea of secularism. Now when the idea of socialist raised in the constitution assembly D.R. Bhim Rao Ambedkar was not in a favour of socialist state as “What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether.”
But after 28 year of independence the socialist word interpreted differently as is favour of the people of India and thus, added in the text of the preamble. And when there is a question of adding the word Integrity in the preamble text no opposition was made and by a majority decision it was accepted that integrity of the nation is as much as important as of the secular and the socialist state. And thus the resolution accepted and these three words were added in the preamble. After the keshvananda Bharti case it was held that preamble of the constitution is the basic structure of the constitution and from then the preamble is an unamendable part of the constitution.
Judicial Interpretation of the constitution
The interpretation of statute i.e. the supreme text constitution was not always amended with a great harmony and respected the doctrine of Harmonious Construction. As Indian constitution is an amalgamation of constitution of different states but still retain the unique identity. So while amending the constitution each and every aspect of the provision of the constitution should be keep in mind. The basic idea of amendability of the text is challenged from the case of shankari Prasad to Minerva mills but the question of law remains same that is the amendability of basic structure of the constitution. As the interpretation differs from case to case as in shankari Prasad amendment procedure laid down in article 368 also includes the power to amend the provisions of fundamental rights and when this question of law raised in the successive case of sajjan Singh supreme court again approved its earlier decision of the shankari Prasad case and upheld that the fundamental right comes under article 368 and can be amended and approved the validity of 17th amendment. But this was not the interpretation in Golaknath’s case when the Supreme Court vehemently said that the parliament is not competent and powerful to amend the fundamental rights of citizens and further quoted that amendment made under article 368 are covered within the word ‘law’ mentioned in article 13(2) of the constitution.
But when the amending power of the parliament further scrutinize in the keshvananda Bharti’s case, in which it was held that the provision of fundamental right can be amended under article 368. This judgment is responsible for introducing the idea of Basic Structure of the constitution and further quoted that Judicial Review of the Supreme Court is a part of ‘Basic Structure’ of the constitution. In all the cases the interpretation made by the judiciary is different but one thing is common in all the cases were, the amendability power of the parliament. And which the keshvananda Bharti case cleared all the doubts for the same as in this, the doctrine of Harmonious Construction applicable in its real sense. All these prominent cases helped to construct and amend the original constitution according to “the need of hour.” The text of original constitution was appropriate for the defined era but there is provision of amendment which helps to cope with the dynamic society of state.
The interpretation of statute i.e. the supreme text constitution was not always amended with a great harmony and respected the doctrine of Harmonious Construction. As Indian constitution is an amalgamation of constitution of different states but still retain the unique identity. So while amending the constitution each and every aspect of the provision of the constitution should be keep in mind. The basic idea of amendability of the text is challenged from the case of shankari Prasad to Minerva mills but the question of law remains same that is the amendability of basic structure of the constitution. As the interpretation differs from case to case as in shankari Prasad amendment procedure laid down in article 368 also includes the power to amend the provisions of fundamental rights and when this question of law raised in the successive case of sajjan Singh supreme court again approved its earlier decision of the shankari Prasad case and upheld that the fundamental right comes under article 368 and can be amended and approved the validity of 17th amendment. But this was not the interpretation in Golaknath’s case when the Supreme Court vehemently said that the parliament is not competent and powerful to amend the fundamental rights of citizens and further quoted that amendment made under article 368 are covered within the word ‘law’ mentioned in article 13(2) of the constitution.
But when the amending power of the parliament further scrutinize in the keshvananda Bharti’s case, in which it was held that the provision of fundamental right can be amended under article 368. This judgment is responsible for introducing the idea of Basic Structure of the constitution and further quoted that Judicial Review of the Supreme Court is a part of ‘Basic Structure’ of the constitution. In all the cases the interpretation made by the judiciary is different but one thing is common in all the cases were, the amendability power of the parliament. And which the keshvananda Bharti case cleared all the doubts for the same as in this, the doctrine of Harmonious Construction applicable in its real sense. All these prominent cases helped to construct and amend the original constitution according to “the need of hour.” The text of original constitution was appropriate for the defined era but there is provision of amendment which helps to cope with the dynamic society of state.
Fundamental Rights Correlation with Directive Principle of State Policy
From the time of framing of the constitution there is a debate between the Fundamental Rights and the Directive Principle of State Policy (DPSP). When the constitution provision moved in the constitutional assembly the Ambedkar was in idea that DPSP enshrined in the constitution must get the special status and must be correlate with the fundamental right but he was also in opinion that DPSP could only give advice to the government of a state and give direction through a set of principle but on the other hand he was also in the idea that DPSP cannot be enforceable in a court of law at that point the other member of assembly were in opinion that there is no use of directive principle if it cannot be enforced, so drafting committee accepted that the Directive Principle of State Policy should be separated from the Fundamental right and it cannot be enforceable in a court of law but can be use as a direction to the state to enumerate law or principles.
It was further classified in Minerva Mills case when Supreme Court explained the relationship between the Fundamental Rights and the Directive Principle of State Policy. In that case there was a ratio of 4/1. And it was held in the judgment that DPSP cannot prevail over Fundamental Rights instead Fundamental Rights and DPSP are complementary to each other. And judiciary further classified as the provision of article 31(c) violate the provisions of article 14 and article 19 so declare article 31(c) as unconstitutional and immediately struck down as infringing the basic structure of the constitution.
From the time of framing of the constitution there is a debate between the Fundamental Rights and the Directive Principle of State Policy (DPSP). When the constitution provision moved in the constitutional assembly the Ambedkar was in idea that DPSP enshrined in the constitution must get the special status and must be correlate with the fundamental right but he was also in opinion that DPSP could only give advice to the government of a state and give direction through a set of principle but on the other hand he was also in the idea that DPSP cannot be enforceable in a court of law at that point the other member of assembly were in opinion that there is no use of directive principle if it cannot be enforced, so drafting committee accepted that the Directive Principle of State Policy should be separated from the Fundamental right and it cannot be enforceable in a court of law but can be use as a direction to the state to enumerate law or principles.
It was further classified in Minerva Mills case when Supreme Court explained the relationship between the Fundamental Rights and the Directive Principle of State Policy. In that case there was a ratio of 4/1. And it was held in the judgment that DPSP cannot prevail over Fundamental Rights instead Fundamental Rights and DPSP are complementary to each other. And judiciary further classified as the provision of article 31(c) violate the provisions of article 14 and article 19 so declare article 31(c) as unconstitutional and immediately struck down as infringing the basic structure of the constitution.
Constitution and its counterparts
Nani Palkhivala quoted “let the constitution be sovereign and the people of the state retain that sovereignty.” He was in strong opinion that may be British colonise for two hundred years but we cannot inherit the idea that “parliament should be sovereign” and was in belief that it is the constitution and only the constitution which is sovereign which is responsible to regulate the basic human rights of an individual. It is the constitution which is above all the power and when there is legal injury one can come under the shed of the constitution, it is the constitution which is responsible to regulate “rule of law” in the country and it is the constitution which is free from all biasness and provide equal opportunity to every individual. But when there is question of fact that what is more reliable the personal law or the constitutional law because it is ultimately the people who retain the sovereignty and it is the people of the state on whom such law is applicable. Some says it is debatable topic to know what is more important the customary laws or the constitutional provisions. All doubts were cleared by Nani Palkhivala in his speech, he quoted “This constitution is not intended for you and me, it is intended to give such a momentum to the living principles of the rule of law. That democracy and civil liberty may survive in India in our own time and in taste when our place we know us no more. This is the future and unfolding future of our great constitution.” And if there is any clash between the personal laws and the constitutional provision the constitutional provision will prevail as in article 13(1) of the constitution says “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.” This provision interpreted the constitutional provision cannot be compromise with any law of law and clearly stated the need and desire of rule of law situation in the country and retain the sovereign status with the constitution itself.
Who is judging the Judges? Appointment of judges challenging the provisions of constitution
Constitution is the outcome of finest works but Albert Einstein said “the person who never makes a mistake will never make anything new.” May be the finest of constitutional provision was produced in the era of emergency for which the legislative and executive was greatly responsible and it was the judiciary who interpreted the constitution at its best and protected the rights of an individual. But sometimes judiciary itself failed to respect the constitution as it was done by the introduction of the collegium system and disrespecting the general basic norms of the constitution. As the original constitution provided that the appointment of judges of higher judiciary shall be made by the president of India under article 124 for the appointing the judges of Supreme Court and under article 226 for the appointment of the judges of high court. And by this the original constitution promoted the idea of check and balance system under separation of power and promoted the idea of Basis Structure of the constitution. But by the incorporation of collegium system the basic structure of the constitution of India will be destroyed as in collegium system there are six judges who will appoint the judges of their own cause. Nowhere in the world, the constitution provision says that a judge shall be appointed by the judge. Acton once said “power corrupts and absolute power corrupts absolutely” and in this case the absolute power is given to the judges for the appointment of judges only. But by the incorporation of National Judicial Appointment Commission the original idea of constitution can be retain and as in NJAC the panel is comprising of members from legislative, executives and judiciary which will preserve the basic structure of the constitution i.e. separation of power and this system unlike the collegium system promote the “independence of judiciary” as in the original constitution it says the judge shall be appointed by the president in ‘consultation’ with the chief justice of India but the NJAC says that there should be a ‘participation’ of judges in the appointment process which clearly depicts that the independence of judiciary.
But it is a great unfortune for the people of the country where the basic structure of constitution; the separation of power and the independence of judiciary is not accepted and supreme court in the month of October 2015 struck down the NJAC and declare it as unconstitutional by stating “executive role will vitiate the appointment process” by disrespecting the basic structure of constitution judiciary left a question mark on the validity of constitution for the people of India.
Constitutional law is dynamic in nature as provided with the amendment provision. It cannot be stable it has to change by the “need of the hour” as once said by Benjamin N. Cardozo “law must be stable yet it cannot stand still.” A democratic state cannot featured well without the rule of law and it is the constitution and only the constitution for a democratic state which not only regulate the state but also provide justice in need. And it is the law who is supreme and sovereign enshrined in the constitution as John Austin said “law is a command of sovereign backed by the sanction” no power is above law and everyone; even the head of the state i.e. president is subjected to the constitution. It is sad to know that the failure of constitutional machinery will lead the state into the hands of monarch and ultimately fall into the totalitarian state. When one faces with the pros and cons of the administrative function it is the constitution which provide the protection to an individual. Constitution is an idea to implement and interpretation with great wisdom, which this era of construction witnesses the same and for this institution to grow with greater responsibility its basic structure has to be preserved by any means. The augmentation made in the provisions of constitution during past 70 years of the constitution will unfold the great opportunities in future and preserve the enshrined rights of an individual. With the great implementation and great wisdom of interpretation the constitution idea can be enshrined to the length and breadth of this country.
Nani Palkhivala quoted “let the constitution be sovereign and the people of the state retain that sovereignty.” He was in strong opinion that may be British colonise for two hundred years but we cannot inherit the idea that “parliament should be sovereign” and was in belief that it is the constitution and only the constitution which is sovereign which is responsible to regulate the basic human rights of an individual. It is the constitution which is above all the power and when there is legal injury one can come under the shed of the constitution, it is the constitution which is responsible to regulate “rule of law” in the country and it is the constitution which is free from all biasness and provide equal opportunity to every individual. But when there is question of fact that what is more reliable the personal law or the constitutional law because it is ultimately the people who retain the sovereignty and it is the people of the state on whom such law is applicable. Some says it is debatable topic to know what is more important the customary laws or the constitutional provisions. All doubts were cleared by Nani Palkhivala in his speech, he quoted “This constitution is not intended for you and me, it is intended to give such a momentum to the living principles of the rule of law. That democracy and civil liberty may survive in India in our own time and in taste when our place we know us no more. This is the future and unfolding future of our great constitution.” And if there is any clash between the personal laws and the constitutional provision the constitutional provision will prevail as in article 13(1) of the constitution says “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.” This provision interpreted the constitutional provision cannot be compromise with any law of law and clearly stated the need and desire of rule of law situation in the country and retain the sovereign status with the constitution itself.
Who is judging the Judges? Appointment of judges challenging the provisions of constitution
Constitution is the outcome of finest works but Albert Einstein said “the person who never makes a mistake will never make anything new.” May be the finest of constitutional provision was produced in the era of emergency for which the legislative and executive was greatly responsible and it was the judiciary who interpreted the constitution at its best and protected the rights of an individual. But sometimes judiciary itself failed to respect the constitution as it was done by the introduction of the collegium system and disrespecting the general basic norms of the constitution. As the original constitution provided that the appointment of judges of higher judiciary shall be made by the president of India under article 124 for the appointing the judges of Supreme Court and under article 226 for the appointment of the judges of high court. And by this the original constitution promoted the idea of check and balance system under separation of power and promoted the idea of Basis Structure of the constitution. But by the incorporation of collegium system the basic structure of the constitution of India will be destroyed as in collegium system there are six judges who will appoint the judges of their own cause. Nowhere in the world, the constitution provision says that a judge shall be appointed by the judge. Acton once said “power corrupts and absolute power corrupts absolutely” and in this case the absolute power is given to the judges for the appointment of judges only. But by the incorporation of National Judicial Appointment Commission the original idea of constitution can be retain and as in NJAC the panel is comprising of members from legislative, executives and judiciary which will preserve the basic structure of the constitution i.e. separation of power and this system unlike the collegium system promote the “independence of judiciary” as in the original constitution it says the judge shall be appointed by the president in ‘consultation’ with the chief justice of India but the NJAC says that there should be a ‘participation’ of judges in the appointment process which clearly depicts that the independence of judiciary.
But it is a great unfortune for the people of the country where the basic structure of constitution; the separation of power and the independence of judiciary is not accepted and supreme court in the month of October 2015 struck down the NJAC and declare it as unconstitutional by stating “executive role will vitiate the appointment process” by disrespecting the basic structure of constitution judiciary left a question mark on the validity of constitution for the people of India.
Constitutional law is dynamic in nature as provided with the amendment provision. It cannot be stable it has to change by the “need of the hour” as once said by Benjamin N. Cardozo “law must be stable yet it cannot stand still.” A democratic state cannot featured well without the rule of law and it is the constitution and only the constitution for a democratic state which not only regulate the state but also provide justice in need. And it is the law who is supreme and sovereign enshrined in the constitution as John Austin said “law is a command of sovereign backed by the sanction” no power is above law and everyone; even the head of the state i.e. president is subjected to the constitution. It is sad to know that the failure of constitutional machinery will lead the state into the hands of monarch and ultimately fall into the totalitarian state. When one faces with the pros and cons of the administrative function it is the constitution which provide the protection to an individual. Constitution is an idea to implement and interpretation with great wisdom, which this era of construction witnesses the same and for this institution to grow with greater responsibility its basic structure has to be preserved by any means. The augmentation made in the provisions of constitution during past 70 years of the constitution will unfold the great opportunities in future and preserve the enshrined rights of an individual. With the great implementation and great wisdom of interpretation the constitution idea can be enshrined to the length and breadth of this country.
- By Pushkal Garewal
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