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Updated: December 1, 2009 12:38 IST

Constitutional law

N. R. MADHAVA MENON
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Collection of essays on Constitutional law and related matters by eminent jurists and academicians.

Anyone familiar with the debates in the Constituent Assembly cannot forget the scholarly and lawyer-like interventions of Dr. Alladi Krishnaswamy which settled many propositions of the draft Constitution that created differences among the members. Such was his scholarship in Constitutional matters that Chief Justice of India Hidayatullah wrote of him, “…no lawyer in India, then or since, has made a greater impression on me than Dr. Alladi.” This book is a collection of essays on Constitutional law and related matters by some of the eminent jurists and academicians of the country based on lectures they had delivered under the auspices of the Alladi Memorial Trust.

The first piece, by Justice Hidayatullah, is a lament on the decline in the standards of judicial administration. Blaming the courts themselves for the unpardonable delay in judicial proceedings, he says judges adjourn a hearing on the flimsiest of reasons; court newspaper publicity and create a new form of litigation called the Public Interest Litigation (PIL); and keep judgments pending and overstep the jurisdiction assigned under the laws and the Constitution. This is indeed a serious indictment of the judiciary by one of the finest judges Independent India has produced. He asks for a Judicial Performance Commission comprising all the retired judges of the Supreme Court — they should become members of that body automatically, once they retired. The Commission should be empowered to suggest a review of controversial decisions. The idea deserves serious consideration, given the increasing tendency of judges sitting in two-member benches of the apex court to reverse settled law, disregard decision of other benches of the same court, and sometimes even exceed its jurisdiction.

Uniform civil code

Another great judge, Justice V.R. Krishna Iyer, in an incisive essay, pleads for the early adoption of a Uniform Civil Code and characterises the Muslim Women (Protection of Rights on Divorce) Act as a “blot on the secular code.” According to him, the first task is to reform the Muslim law and draw up an Islamic Code consistent with universal human values, while preserving the essentials of Islamic jurisprudence. He appreciates the efforts of the judiciary to make incremental reforms in family law to remove prejudices and gender discrimination.

In a piece titled the “Use and Abuse of the Constitution,” P.C. Rao looks at negative developments in the executive, legislative, and judicial spheres of governance. He regrets the negligible time Parliament devotes to law-making, the way the powers and privileges are abused by members of Parliament, the extent of misuse of discretionary powers by the executive, and the politics of reservation that keeps governance hostage. He is against undertaking a general review of the Constitution as it may debilitate the existing structure without producing a more efficacious one.

In a powerful analysis of the “basic structure” doctrine, P.P. Rao argues that the court decision has disturbed the checks and balances envisaged by the Constitution. He contends that the validity of the doctrine will remain an open question as there is an inherent inconsistency in the Kesavananda Bharati judgment.

There are some interesting articles on minority rights and the way secularism is practised in India. K.G. Kannabiran, the renowned human rights activist, analyses the scope of freedom of religion under the Constitution and wonders how it tolerates the practice of fundamentalism. Asghar Ali Engineer finds that, despite Constitutional guarantees, the Muslim minorities are far behind the others in all fields, be it representation in legislatures or public service. He blames the government, rather than the Constitution, for this. Javeed Alam speaks about the formation of Hindu religious consciousness in modern India and argues that it led to a “communalised appropriation of tradition,” with a forced unification of the Hindu community and the belief that only a unified community can be a “reservoir of constant corrective action in favour of the nation.” Such a conception of Hindu identity, he contends, directly counterposed to the negative similarity of minorities. Prashant Bhushan takes the idea forward and attempts to answer the question ‘why even fairly stringent laws have not succeeded in stemming the onslaught of communalism?’ According to him, the educated middle classes, including the political class and the civil servants,refuse to realise the seriousness of the threat communalism poses.

Equal status

Ms Kalpana Kannabiran is critical of the judiciary’s approach to gender discrimination which, she says, does not reflect the concern of the Constitution for equal status to women. She advocates an alternative line of thinking as perceived in some of the women-specific laws and a few recent decisions of the Supreme Court. Justice Ranganathan, who takes a close look at the functioning of the Constitution over the past four decades, asserts that “we have not at all fared badly.”Though some of the pieces — based as they are on lectures delivered almost two decades ago — have become somewhat outdated in terms of the data analysed, the issues they raised are still relevant. The elegantly brought out publication is a valuable addition to the literature on Constitutional law and governance.

ALLADI MEMORIAL LECTURES: Tulika Books, 35 A/1 (third floor), Shahpur Jat, New Delhi- 110049. Rs. 595.

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