In spite of setbacks, the Constitution is a living, vibrant document that allows the people to define fundamental aspects of our country…
At 10:18 a.m. on a cold winter morning 60 years ago, a nation was born.
In many ways, August 15 would have little meaning if not for January 26. For, although independent, the vast land that formed colonial India was peopled by a multitude, divided by language, religion and ethnicity, and still treated as a Dominion of Britain, with George VI continuing as the Head of State. Scarred by partition and rendered rudderless with the passing of its foremost leader, they sought a rallying point — one that would bring them together, not merely symbolically, but as a living truth. That succour was the Constitution of India, signed in after two years of debate among the most outstanding minds of the time. The adoption of the Constitution on that momentous day marked the actual setting of the sun on the British Empire in India.
While meticulously crafted, the very inaugural year of its existence saw two of the Constitution's creations clashing, in what would be the first of many such conflicts. The judiciary struck first, when its judgments invalidating laws relating to public order (Romesh Thapar) and land reform (Kameshwar) embarrassed the interim Government of Prime Minister Nehru. The Constituent Assembly, continuing as the provisional Parliament, hastily pushed through the first Amendment to the Constitution which created a mechanism to immunise certain legislation from future such attacks. Intended for land reform legislation, the Ninth Schedule later became an ogre, used as a tool by unscrupulous Governments to protect questionable legislation.
Nehru had erred.
With one fell blow, he had taken on the judiciary, which, being explicitly empowered to declare law invalid was one of the most powerful in the world. The power to amend the Constitution was now a ready weapon with the Government, although the abuse it could be capable of was only manifest some years later. In a short span of four years, the judgments concerning amendment of the fundamental rights (Golak Nath), Bank Nationalisation (R.C. Cooper) and Privy Purses (Madhav Rao Scindia) dealt reverses to the Congress party. The decision in Kesavananda set the seal on the amending power of the Constitution, with the majority opining that the core of the Constitutional ethos could not be touched. This, known as the ‘basic structure' has come to define the actual width and ambit of the Constitution and the power bestowed on the Indian judiciary. Upendra Baxi, writing at the time, refers to this judgment as “in some, sense, the Constitution of the future”, however noting, that for its length, it could lead to an illiterate Bar!
This judgment was regarded by the executive as the last straw. Not used to being denied, reprisals were swift with judges being superseded, and shortly thereafter, a national emergency being imposed to protect Mrs. Gandhi's election. More Amendments followed, all aimed at negating the Court's damaging rulings. Detention statutes were given the arbitrary protection of the Ninth Schedule, and while the High Courts acted creditably, a supine Supreme Court Bench favoured the Government, thereby completing the subjugation of the Court to the caprice of the Government (ADM Jabalpur). As a final blow, the brave dissenting judge was also superseded.
It was arguably with a sense of guilt that the judiciary attempted to atone by evolving the concept of Public Interest Litigation (SP Gupta). Relaxing the rule of locus standi, the principle has led, over the last three decades, to protection for pavement dwellers and undertrials, and resulted in safer workplaces and administrative transparency. Strangely, the executive has not exercised its power of amendment to recover the power to appoint judges, which was taken away by the Supreme Court (SCAORA).
In the 1994 film ‘With Honors', a Harvard Professor, (portrayed by author Gore Vidal) asks his class the question, “What is the particular genius of the Constitution?” A tramp who has wandered into the room answers: “The beauty of the Constitution is that it can always be changed. The beauty of the Constitution is that it makes no set law other than faith in the wisdom of ordinary people to govern themselves.”
It is precisely that genius which ensures that the Constitution remains a vibrant, living document. It has embraced diametrically opposite views on free speech, sexual preferences and open markets. Clearly, our founding fathers were prescient enough to create a document that would adapt to the vagaries of the future.
However, much remains to be done. In a nation where political compulsions play havoc with the needs of the uneducated and the disenfranchised, the Constitution cannot be a magic panacea. Human will is necessary — a will that ensures the Constitution is better applied, and altered only sparingly.
Conducted in parts of South India, the Shashtiabdapoorthi (completion of 60 years) ceremony celebrates a person's life, and is marked by a ritual remarriage with his spouse. Much is to be celebrated about our own 60-year-old, buffeted as it has been through the years. One can only hope that this year we can similarly mark the occasion by reuniting it with the values which ushered it in — hope, truth and integrity.
The author is Advocate , Supreme Court of India.