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The evolution and framing of the Constitution

It does not impose, with reason, the same burden of accountability on the Judiciary as the Executive and the Legislature

December 13, 2021 12:02 am | Updated 09:48 am IST

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Icon for constitution, book, law, jurisdiction, authority, balance, courthouse, judgment

Constitution Day was celebrated on November 26 this year too with the Government of India organising a grand event in the Central Hall of Parliament to remind citizens that the Indian Constitution was adopted by the Constituent Assembly this day, 72 years ago. As usual, speeches were made about the greatness of the Constitution. But politics was not kept out entirely. In fact, there is always an unexciting predictability about these speeches. That is largely attributable to the sequacity of the political class.

It is not certain whether the various speeches made on this occasion every year have enlightened the younger generation of India about the historical background of the Constitution. It is a fair guess that the new generation in this country knows pretty little about the freedom struggle led by Gandhi and the Congress.

A refresher

For the information of this generation, let me state a few facts. The framing of the Constitution is not an isolated and accidental event in the sense that one fine morning, a few barristers and jurists got together and decided that India needed a Constitution and began writing it. It is the culmination of long years of the struggle for freedom which consumed a countless number of precious lives of ordinary Indians. The Indian National Congress, under the leadership of Pandit Jawaharlal Nehru, had demanded, in 1935, a Constituent Assembly to frame a Constitution for free India, and Nehru wanted the election to be held to the Assembly on the basis of adult franchise. As it happened, the Constituent Assembly came to be constituted 11 years later, in 1946, but the election was held on the basis of communal representation.

After almost three years of hard work, the Constitution was completed in November 1949 and was adopted by the Constituent Assembly on November 26. Although the Constitution was adopted and signed by the President of the Constituent Assembly, Dr. Rajendra Prasad, on that day, it was brought into effect only on January 26, 1950. This date was chosen because it was on this day in 1930 that the Indian National Congress under the presidentship of Nehru declared ‘Poorna Swaraj’ (complete independence) for India. Thus, the history of the Constitution is bound up with the history of the Congress and the freedom movement.

Nehru’s contribution

Any celebration of Constitution Day will remain incomplete if Nehru’s contribution to the making of the Constitution is not remembered. It was his Objectives Resolution which formed the Preamble of the Constitution. It contained the philosophy, the vision and the goal of the Constitution. The ideas thrown up by the European Renaissance, the America Independence and the French Revolution tremendously influenced him. The ideas of liberty, equality and fraternity and freedom of speech, freedom of conscience, justice-social economic and political permeated the Indian Constitution under the influence of Nehru.

It is an interesting thought that India’s mainstream society which is structurally incapable of internalising the ideas of equality and social justice, had to suffer terrible inconvenience from the imperatives of equality and social justice. The Constitution ushered in an era of equality, signifying a complete break with an unsavoury past.

Choice of Ambedkar

Dr. B.R. Ambedkar, of course, is rightly remembered in the context of the Constitution and more frequently in political contexts. However, it is difficult to remember a single memorable speech by any politician about the contribution of Dr. Ambedkar to the building and concretising of the concept of social equality in the Constitution. Dr. Ambedkar became the Chairman of the drafting Committee perhaps incidentally.

He admits in one of his famous speeches in the Constituent Assembly that he had come there to plead for the depressed classes, but the Assembly made him the Chairman. Dr. Ambedkar was an original thinker and a very perceptive social scientist who had a keen understanding of the terrible structural inadequacies of Hindu society and its philosophical pretentions.

He radically deferred with Gandhi on many crucial issues and had serious differences with the Congress. He ridiculed civil disobedience, non-cooperation and Satyagraha and said “these methods are nothing but the grammar of anarchy and the sooner they are abandoned, the better for us”. But the Constituent Assembly, which had an overwhelming majority of Congressmen, chose him as the Chairman of the drafting Committee. The great men who led the freedom movement and guided the making of the Constitution, had displayed tremendous foresight in choosing Dr. Ambedkar to draft the Constitution.

On accountability

Speeches made on Constitution Day expectedly contained references to the Judiciary. Many such references are undoubtedly about the Supreme Court. Of course, Constitution Day cannot pass without making pontifical observations about the role and the responsibility of the Judiciary, particularly the top court. Judicial accountability is an issue which the political class seems to be obsessed with.

The Preamble of the Constitution begins with “We, the People of India”. The people are the sovereign, and every organ of the state is ultimately accountable to them. But, accountability is a nuanced term which is understood or interpreted differently in different contexts. In a parliamentary system with the Cabinet form of government, the Executive is accountable to the Legislature, because the Legislature consists of representatives of the people. Therefore, if the Legislature withdraws support to the government, it does not survive.

Similarly, the legislators are accountable to the people who elect them. They have to go back to them every five years. But, how is judicial accountability dealt with by the Constitution? Recently, this interesting issue was raised by the present Chief Justice of India, N.V. Ramana, in one of his thought-provoking speeches, on November 26, in the context of the Constitution Day celebrations. He said, “The framers of the Constitution made accountability an integral element with respect to the Legislature and Executive. However, they consciously decided to keep the Judiciary on [a] different pedestal.” This is a lucid exposition of the constitutional position of the Judiciary vis-à-vis other organs of the state with respect to accountability

A different pedestal

Serious students of the Constitution can readily agree with the learned Chief Justice of India because the Constitution does not impose the same burden of accountability on the Judiciary as the Executive and the Legislature. The mandate given to the Judiciary is to do justice to the people, and, therefore, the Constitution made it an independent institution answerable neither to the Executive nor to the Legislature in respect of its functions. Article 142 brings in the concept of complete justice.

The top court, where all litigations terminate, is mandated to do complete justice. In order to be able to do that, the Judiciary has been placed on a different pedestal. One can unhesitatingly agree with the Chief Justice of India when he says “they (constitution makers) trusted the competence of the men and women who would adorn the Bench in upholding the Constitution”. Who can deny that the doctrine of ‘basic structure’ propounded by the Supreme Court in the Kesavananda Bharati case has in a way saved the Constitution from being mutilated by politicians who believe in neither democracy nor in justice? An independent judiciary which does not have to look over its shoulder is the pride of the Indian Republic. Accountability of the Judiciary in the political sense is a disaster. “We, the People of India” made it independent so that it does complete justice to us. The Chief Justice of India knew what he was saying.

P.D.T. Achary is Former Secretary General, Lok Sabha

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