Nehru signing the Constitution of India. Image Source: link
The Constitution of any country is really a political document. It brings into existence a body politic, a state, and defines what the various organs of the state are to be, what their assigned functions are, and so to say draws the Lakshman Rekha around each organ of the body politic. The interesting thing is what the Preamble of the Constitution of India says. This is what the Preamble says, “We the people of India having solemnly resolved to constitute India into a sovereign, socialist, secular democratic republic”. I may add here that the words ‘socialist’ and ‘secular’ were not there originally, they were added during the emergency, “and to secure to all its citizens justice, social, economic and political, liberty of thought, expression, belief, faith and worship, fraternity assuring the dignity of the individual and the unity and integrity of the nation, in our Constituent Assembly this 26th day of November 1949 do hereby adopt, enact and give unto ourselves this Constitution.” In 1949, this was brought into force and the Republic was constituted on the 26th of January, 1950 which we celebrate as Republic Day.
What does this Constitution do? The Constitution is the supreme law of the country — everything has to be compatible with the constitutional doctrines, the constitutional provisions. Anything that is inconsistent cannot be effectuated by anybody in this country. The Constitution imparts constitutional supremacy and not parliamentary supremacy. We do not say Parliament is supreme, we say that Constitution is supreme because everybody’s jurisdiction including that of the Parliament is subject to the constitutional limitations. Now, what does the Constitution do basically? The Constitution divides the state into three basic organs
— parliament, judiciary and the executive. And, having divided the body politic into three organs, the Constitution goes on to define each organ. The executive can be the political executive which means the ministers, the cabinet and the non-cabinet ministers and the bureaucracy who implement the policies adopted by the Government of India or the government of a state. The Legislature is of two types; one is the central legislature called Parliament, the other is each state will have its own legislature. But in each state also you will have the judiciary, the legislature and the executive separately dealing with each allotted and assigned subjects.
The Constitution is the supreme law of the country — everything has to be compatible with the constitutional doctrines, the constitutional provisions. Anything that is inconsistent cannot be effectuated by anybody in this country. The Constitution imparts constitutional supremacy and not parliamentary supremacy.
The job of the legislature is to enact legislation. For what purpose? For the purpose of bringing about this revolution that the Constituent Assembly talked about — to ensure justice, social, economic, and political. Social justice in a sense of equality and equilibrium in society. Economic justice is to make sure that everybody gets the bare minimum required for a dignified human existence. Political justice is to ensure that each one is treated as an equal for the purpose of the law. In order to ensure this, the Constituent Assembly also ensured that the Constitution has a separate chapter called Part III which talks of fundamental rights of the citizens and sometimes also available to non-citizens. Article 19 for example, gives a list of various things, the right to free speech, the right to free association, the right to engage in any trade, profession or activity of your choice and the right to move freely throughout the territory of India, the right to buy whatever you want and settle down in any part of the country. I can go and settle down in any place in this country, I can take up any job, I can take up any profession and there cannot be discrimination. That is the fundamental right that is given.
Article 14 says that for the purpose of the law, everybody is equal irrespective of what race you belong to, what religion you belong to, what community, where you come from, what language you speak, all these are irrelevant.
Of all the fundamental rights, I emphasise three. Now, what is a fundamental right? People think, “Oh, this is the Constitution which has given us the fundamental right.” No, the Constitution recognises the fundamental right. The fundamental right is a right that every human is born with such as the right to breathe. Does the law give me the right to breathe? Certainly not. The right to live, did the law give me the right to live? The right to procreate, did somebody in Parliament tell us that I have a right to do it? These are my rights as a human being. These are the rights of every human being in the world. So far as the Indian Constitution is concerned, they are recognised in a wide variety of spheres. Article 14 – what is the worth of Article 14? Article 14 says that for the purpose of the law, everybody is equal irrespective of what race you belong to, what religion you belong to, what community, where you come from, what language you speak, all these are irrelevant. The law treats X as Y. The law will treat man equal to woman. That is the force of Article 14.
Article 21 is another interesting article that says no person shall be subjected to deprivation of his life or liberty except by a law which is constituted in accordance with the Constitution and which has to stand the test of another scrutiny of fundamental rights.
Article 21 is another interesting article that says no person shall be subjected to deprivation of his life or liberty except by a law which is constituted in accordance with the Constitution and which has to stand the test of another scrutiny of fundamental rights. What does the right to life mean? Originally when the Constitution was developing in the earlier stages in the ’50s, the view that was taken by the Supreme Court was that as long as there is a law passed by Parliament, I can take away your right, I can take away your liberty, I can take away your life also. But subsequently, down the line, the view that has been taken is, no, the law must not only be passed by Parliament in a valid manner, but must also stand the test of other fundamental rights.
What is this test of other fundamental rights? There is an article, Article 13 in the Constitution which says any law that is made either by the legislature or subordinate legislation by executive shall be void for inconsistency with fundamental rights. The newspapers have a right to publish articles which may be pro-establishment, anti-establishment, pro-India, anti-India, pro-Pakistan, anti-Pakistan. If India and Pakistan have a Test match in the Brabourne Stadium or Wankhede Stadium, and I were to say, “Pakistanis Zindabad,”, that is my fundamental right. You cannot call me anti-nationalist and prosecute me for that. Supposing I were to write an article and say, “I appreciate some politician’s speech in Pakistan,” that is my fundamental right, As long as I do not transgress the laws, I have a right. But, there will be exceptions.
If I am doing something which is against the constitutional principle, the constitution doesn’t permit me. So where does the right to freedom of speech stop? As long as it does not impinge on our friendly relations with states, our sovereign relations with states, foreign states, it does not cause defamation of somebody and it does not amount to contempt of court, I am absolutely free to say anything that I want. Now, similarly, freedom to practise any profession; I would love to take up the profession of fraudster or robber because that is the quick money thing. No. Why? Because that is against the law that has been laid. The simple reasoning is [that] whatever hurts society, hurts the other citizens is taboo. Otherwise, I am free to do what I want.
The Supreme Court’s reasoning was when the Constitution guarantees you the right to life, it says there shall be right to a dignified life.
Article 21 is negatively worded. It says, “No person’s life or liberty shall be taken away except by a due process of law.” This Article has been given a very broad expansive view by the Supreme Court. The Supreme Court’s reasoning was when the Constitution guarantees you the right to life, it says there shall be right to a dignified life. Dignified life requires clean air to breathe, so it’s Article 21. It requires environment, it requires that my seashore is not dirtied, it requires that the vehicular pollution is kept under control, it requires various things which are necessary for a human dignified life. So Supreme Court has used everything and sort of funneled it into Article 21. So Article 21 has so to say become the cornucopia of all other subsidiary rights.
Then you have certain religious freedoms. So every person is free to pursue his religious persuasion, every minority is free to establish institutions where religious education can be given and no right of a religious minority institution can be infringed.
Article 14 has been introduced in the Constitution to ensure that every human being is given equality of protection. Article 14 guarantees equality before the law and equal protection of law to all persons in India whether they are citizens or non-citizens. So tomorrow I cannot be arrested on the grounds that I am a lawyer or whatever, nor can I be arrested for following the Hindu faith, nor can I be arrested for speaking Kannada at home
— that would be total anathema to Article 14.
The directive principles are a set of principles laid down in Part IV which says that state is enjoined to ensure that the means of production are controlled so that there is social justice to everybody, to ensure that there is equal justice to the working class, to ensure that a living wage is given, to ensure that the status of women and children is raised.
What are these fundamental rights for? For ensuring that social progress takes place, for ensuring that the level of the human beings in society is raised to such an extent that there is a concept of equality, liberty and fraternity and this is exactly what the directive principles do. The directive principles are a set of principles laid down in Part IV which says that state is enjoined to ensure that the means of production are controlled so that there is social justice to everybody, to ensure that there is equal justice to the working class, to ensure that a living wage is given, to ensure that the status of women and children is raised. How does the state do it? All of you must be travelling on trains. So there is a reserved compartment for ladies. How is it justified? Article 14 says all human beings are the same. No, this is one exception in order to ensure that women who were subjugated in society shall have equal status. Therefore, a law that protects women and children from exploitation is given an exception.
Then we have Article 15 which says in government service or in government-aided institutions, there shall be equal job opportunities. To that, there is an engrafted exception in Article 16 which says because of the historical fact that certain sections of society were subjected to all kinds of oppression and they were not allowed to come up to their natural level of progression, there is a necessity to grant them reservation. So in IIT, an average boy has to obtain — maybe I’ll just say 90%. But a reserved seat can be obtained by 45%. This at first flush looks like injustice, but in the long run, there is a historical reason why it has been done. That is the doctrine of reservation.
If any law infringed on the fundamental right, there is a remedy available in the Constitution before the High Courts and Supreme Court. The judges have been given an extraordinary power called the writ power. I am sure all of you must have heard of PIL. What is a PIL? Public Interest Litigation. This is a constitutional power that overrides all other laws. This power includes the right to decide whether a provision of law is constitutionally valid or unconstitutional.
Then you have the idea that any law shall not infringe any of the fundamental rights. If any law infringed on the fundamental right, there is a remedy available in the Constitution before the High Courts and Supreme Court. The judges have been given an extraordinary power called the writ power. I am sure all of you must have heard of PIL. What is a PIL? Public Interest Litigation. This is a constitutional power that overrides all other laws. This power includes the right to decide whether a provision of law is constitutionally valid or unconstitutional. You must have all read in the newspaper about the bill that was brought about by Parliament called the National Judicial Appointments Act and the constitutional amendment which preceded this. Now that happened to be struck down by the Supreme Court on this ground that it was inconsistent with the basic features of the Constitution, the fundamental basic feature being that a judge is absolutely independent. This is an awesome power. As long as the judges who man — or shall I say woman — the courts realise this and act with a sense of maturity, with a sense of restraint, I think the power is good. It is essential to ensure that there is a mechanism by which whatever law the state legislature or Parliament enacts is tested on the anvil of fundamental rights. If you all remember, there was this famous case of Maneka Gandhi. Maneka Gandhi applied for a passport, and her passport was refused. So the question arose that is this a fundamental right or not? Finally, after a lot of debate, the Supreme Court came to the conclusion that it was a fundamental right to get a passport and it was also an infringement of her right under Article 14 because she was discriminated against because of her association with the Gandhi family, and it was struck down. So, similarly, a number of other judgments have been rendered by the Supreme Court. Basically, the issue is if there is a law enacted by Parliament, state legislature or anybody in authority, [that] is inconsistent with fundamental rights, it will be invalidated. But who can do it?
It can be done only by a high court or by the Supreme Court.
What is the role of the executive? Once Parliament or state legislature passes a law, then it is the job of the executive to see that it is implemented. One is the political executive which consists of the ministers who take a call on matters of policy and pass a law – say on alcohol or beef prohibition. When that happens, the question is whether this is valid under the Constitution.
Law is passed by the legislature, parliament or state legislature, and the executive makes detailed rules in order to implement it.
I must tell you something interesting. I’ve never eaten meat in my life, it’s too late for me to start anything like that. Nor am I used to drinking alcohol. But the largest number of liquor licences granted in the Bombay High Court when I was a judge was from my court. People still remember me as the liquor licence judge.
Reason? The reason is liquor licences are rejected authoritatively and very arbitrarily. Some officer there is given this power to decide whether I should drink or not, and he says, “I don’t like your face,” or he takes money under the table and grants me licence or does not. So when such a matter comes before a court, the court will ask only simple questions. What is the law on the subject? The policy is to abolish liquor. Good, I am with you. But then you say, “No it will be allowed to persons who have licences.” Very good, that is your policy. What is the basis on which the policy is to be implemented? One, two, three, four, five. Have you followed it? Not followed it. Strike it off. Go give him the liquor license. That is really the independence of the judge. That is the manner in which the Supreme Court operates, the manner in which the judges operate. Things are determined on the basis of an examination of the constitutional doctrines, their application to the laws, and the restrictions to which the constitutional doctrines are available, and the restrictions beyond which the constitutional doctrine says it cannot be done.
Rules cannot go beyond what the parent act itself says. And neither the rule nor the parent act can go beyond what the constitutional provisions of the fundamental rights are. Ultimately, the constitution is supreme.
The executive has the right to make rules. Law is passed by the legislature, parliament or state legislature, and the executive makes detailed rules in order to implement it. For example, let’s say, Citizen’s Act. Citizen’s Act says so and so shall be a citizen, a person who is already born in this country, a person who has been naturalized in this country, a person one of whose parents were living when British left. What is the manner in which you get citizenship? Then there will be regulation, there will be a rule saying that any person who wants to apply for citizenship should use this form and apply to such and such a magistrate, produce this document. The magistrate will examine it and say yes or no, and then citizenship certificate will be granted. Same thing when you want to apply to IIT. There are certain rules. I must be qualified with this, I must have this percentile of marks, I must give an application, attach a passport-size photograph to it, take signatures of two other persons, whatever the rules require. Similarly, the executive has these rules. But the rules are subject to two restrictions. Rules cannot go beyond what the parent act itself says. And neither the rule nor the parent act can go beyond what the constitutional provisions of the fundamental rights are. Ultimately, the constitution is supreme. In Indian philosophy, Shruti is the ultimate pramana, Shruti means Vedas. Anything that is inconsistent with Shruti is discarded. Shruti smrityoh virodhe tu, shruti reva gariyasi. That is the fundamental doctrine. Similarly, if anything is there inconsistent with the Constitution, it will be discarded.
