Sixty-five years ago on this day, i.e., the 26th day of November in 1949, we the people of India did adopt, enact and give to ourselves the Constitution of India.
This is normally observed as the National law Day. On this day, the foundation of the Constitutional edifice of the Indian nation came into existence. The Constitution of India in its interpretative and implementation field has seen many upheavals.
The limitations on the amending power of Parliament were held to be limited by the doctrine of “basic structure”. This doctrine first propounded in the Keshavananda case was further fortified to the Minarva Mills case.
A multitude of features have been acknowledged as “basic” through different judicial pronouncements. So far, they could be stated to be supremacy of the Constitution, Rule of law, the principle of separation of powers, the objectives specified in the Preamble to the Constitution, judicial review, federalism, secularism, the sovereign democratic republican structure, freedom and dignity of the individual, unity and integrity of the nation, the principle of equality, the essence of other Fundamental Rights in Part III, the concept of social and economic justice to build a welfare State, the balance between Parts III and IV, i.e., between Fundamental Rights and Directive Principles, the Parliamentary system of Government, the principle of free and fair elections, limitations upon the amending power conferred by Article 368, independence of judiciary, powers of the Supreme Court under Articles 32, 136, 141 and 142, the powers of the High Court under Article 226 and effective access to justice.
Out of these, on the National law Day, one must give prominence to Rule of law, judicial review, independence of judiciary and effective access to justice. This is a day to remember the great judges and great parliamentarians, who have left behind indelible marks on the growth of “Constitutionalism”.
This is also a day on which the two wings of judiciary, viz., the Judges and the Bars ought to rededicate themselves to uphold the Constitution and to work towards implementation of its mandates.
Two recent events stand out in the Courts ensuring that Rule of law prevails and mercy is not extracted in violation of law.
In the Veerapan case, the Government was willing to implement a “deal” as per his dictates. The Supreme Court intervened and ensured that the law was enforced in letter and spirit.
Just a few days ago, the enforcement of an arrest warrant on a person claiming to be a “guru” required the intervention of the Punjab & Haryana High Court. In a number of cases, many governmental actions have been subjected to judicial monitoring and effective prosecution.
The 2G spectrum case and the coal allotment case are happy indicators that in distribution largesse of the State the basic principles enshrined in the Constitution are followed.
The apex court has also laid down the law regarding disqualification from membership of the legislature on the conviction of the Member. The apex court also left it to the “Constitutional Trust” of the Prime Minister or the concerned Chief Minister with an indication from the framing of the Constitution that persons with criminal backgrounds may not be inducted into any Council of Ministers.
When the judiciary has tried to play its effective role, there is still a crying need for a more effective and audible voice of the citizens. Accountability of the Government is through legislative control, duties and powers of the CAG of India, a responsible media and, above all, very vigilant and constructive activities of the voters at large.
This is a neglected arena. There is a desperate need for an appropriately purposive articulation of the vox populi so as to further adequately influence the policies and actions of the Executive, the Government. Adherence to “Constitutionalism” demands that we all wake up to express our opinions in an organised and effective manner. And this concerns us all.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)