Dushyant Dave 
This is the full text of the speech delivered by Dushyant Dave on the constitution of India and the Indian judiciary at the first A.G. Noorani Memorial Lecture at the India Islamic Cultural Centre, Delhi.
The subject of today’s discussion is as important today as it was to the Constituent Assembly which debated the draft constitution between 1946 to 1950. The constitutional framers were extraordinarily alive for the creation of an independent judiciary.
Dr. B.R. Ambedkar, the spirit behind the constitution, made this abundantly clear while participating in the debate on 9th December 1948 when he said: “British jurisprudence insists that there can be no right unless the constitution provides a remedy for it. It is the remedy that makes a right real. If there is no remedy, there is no right at all, and I am therefore not prepared to burden the constitution with a number of pious declarations which may sound as glittering generalities but for which the constitution makes no provision by way of a remedy. It is much better to be limited in the scope of our rights and to make them real by enunciating remedies than to have a lot of pious wishes embodied in the constitution. I am very glad that this house has seen that the remedies that we have provided constitute a fundamental part of this constitution.”
Shri Alladi Krishnaswami Ayyar put it candidly when he said on 8th November 1948: “In regard to the judiciary, the draft constitution also recognises the importance of an independent judiciary for the proper working of democracy, and especially of a federal constitution. The Supreme Court, under the draft constitution, has wider powers than any other court under any federal system in the world.”
To my mind, constitution of India is remarkably people centric. The preamble itself connotes: “We, the people of India, having solemnly resolved to constitute India into a sovereign, socialist, secular, democratic, republic” goes on to secure to secure to all its citizens: justice, social, economic, and political; liberty of thought, expression, belief, faith, and worship; equality of status and of opportunity; and to promote fraternity among all assuring the dignity of the individual with unity and integrity of the nation.
The preamble thus lays down the fundamental principles or objectives underlying the constitution and is therefore the basic structure of our constitution. These principles are then given life in various parts of the constitution in the form of rights be it as fundamental or constitutional part III – originally called ‘Rights of Freedom by Sardar Vallabhai Patel Committee’ (contains fundamental rights including “Right to Equality” (Article 14-18), “Right to Freedom” (Article 19-22), “Right against Exploitation” (Article 23 & 24)”, “Right to freedom of Religion” (Article 25-28) & “Cultural and Educational Rights” (Article 29 & 30), but, to ensure that these rights are sufficiently secured for the citizens, the constitutional framers included in these vary chapter, “Right to Constitutional Remedies” (Article 32-35) and created Article 32 which guarantees Right to move the Supreme Court for the enforcement of the fundamental rights as a guarantee and empowers the Supreme Court to issue directions or orders or writ as described therein for the enforcement of any of the rights conferred by Part III. Sub-Article 4 provides that the rights guaranteed by this Article shall not be suspended except as otherwise provided by the constitution.
Constitutional farmers, therefore, not only gave fundamental rights to all the citizens but added to them a fundamental right for constitutional remedy to move the Supreme Court for their enforcement. This shows an extraordinary foresight and wisdom on their part.
No wonder while debating this Article on 9th December 1948 Dr. Ambedkar himself declared: “If I was asked to name any particular article in this constitution as the most important – an article without which this constitution would be a nullity – I could not refer to any other article except this one. It is the very soul of the constitution and the very heart of it and I am glad that the House has realised its importance.”
He also said: “For instance, if a man is arrested, without filing a suit or a proceeding against the officer who arrests him, he can file a petition to the court for setting him at liberty.… In a proceeding of this kind where the application is for a prerogative writ, all that the court can do is to ascertain whether the arrest is in accordance with law. The court at that stage will not enter into the question whether the law under which a person is arrested is a good law or a bad law… All that the court can inquire in a habeas corpus proceeding is whether the arrest is lawful and will not enter into the question – at least that is the practice of the court – of the merits of the law.”
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The debate on 9th December 1948 on Article 25 (now Article 32) provides not just lively discussion but also the apprehensions and anxiety that the framers had in their mind for future India. Smt. G. Durgabai therefore said, “Sir, the right to move the Supreme Court by appropriate proceedings for the enforcement of a person’s rights is a very valuable right that is guaranteed under this constitution.”
Rev. Jerome D’Souza put it philosophically:
“Sir, it is because we all believe – and that is the implication of this chapter of fundamental rights – that man has certain rights that are inalienable, that cannot be questioned by any humanly constituted legislative authority, that these fundamental rights are framed in a manner and a sanction and a protection given to them by this provision for appeal to the Supreme Court.”
He said:
“And the sacredness of the individual personality, the claims of his conscience, are, I venture to say, based upon a philosophy, an outlook on life which are essentially spiritual. …It is because we believe that the fullest and the most integral definition of democracy includes and is based upon this sacredness of the individual, of his personality and the claims of his conscience, that we have framed these rights.”
To a speaker before him who asked: “Why is it that provision has been made to change this constitution? Why should not these sacred rights be placed beyond the possibility of abrogation?”
Rev. Jerome D’Souza answers: “If the convictions and the faith of our people go away, there is no use in trying to protect these rights by sanctions. The rights and the sanctions would be illusory. But if faith remains, no one will want to touch them.”
To my mind, the faith that he refers to is our faith in the constitution and the constitutional morality. If we are steadfast in maintaining that faith the rights guaranteed under the constitution will always remain Sacrosanct.
Shri B. Pocker Sahib Bahadur expressed the apprehension that the rights may be taken away by observing: “I must say that the recent behaviour of certain provincial governments has taught us that it is very necessary to take careful measures to see that they are not allowed to behave in the manner they have behaved. I am referring to the way in which the sacred rights and liberties of the person were being dealt with by certain provincial governments under the cloak of the powers that they are said to possess. Very often, Sir, it has become the fashion with these provincial Governments to say: “Well, some state of emergency has arisen and therefore, in the public interest, we shall utilise the powers conferred by the Public Safety Act and we shall have to curtail the liberties of so many people and put them in jail.”
He therefore expressed the hope: “I would say, that one principle which we have to bear in mind and we should always keep in view in framing this constitution is that ministries may come and ministries may go, but the judicial administration must go on unaffected by the vicissitudes in the lives of these ministries and the changes in the government. It is more to preserve their own power, I mean, the power of the particular party or the clique in power that these measures are resorted to than for any public purpose. Such a state of affairs should never be allowed to be tolerated.”
He ended by saying: “that the powers of courts should not be made to depend upon the will and pleasure of the government and they should under no circumstances be allowed to interfere with the powers that vest in courts of law. If the very guarantee of personal liberty on which a democratic form of government is based and the powers vested in courts of law to enforce such rights independently are allowed to be interfered with, no one is safe. Of course, it is not a question of majority community; it is not a question of minority community but the powers that be at the time clap in jail such of the individuals or groups of people, whom they do not like and whom they do not want to be at liberty, perhaps for the fear that they may undermine the power which they are enjoying.”
Interestingly, referring to the Right to Freedom of Religion in Articles 25 to 28 Prof. Shibban Lal Saksena on the very day said: “I personally feel that the majority has gone to the farthest extent in this matter. I may also point out one thing. The fundamental rights committee was appointed before the partition took place. In fact, these rights were written in this form before the partition had taken place. Yet, we have not changed them. I am not letting out a secret when I say that our great leader Sardar Patel told us, “Kindly do not interfere with these rights, religious and cultural, because they form part of an agreement arrived at before the partition.” Yet, we have not changed these rights, because our leader has told us not to interfere with them… I think the real guarantee of the minority is the goodwill of the majority” and he, therefore, hoped that we would be able to create a nation based on the ideals of Mahatma Gandhi to have in our country “a real secular state.”
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Prof. N. G. Ranga expressed fear “that there is a worldwide conflict today between two great ideologies. There is totalitarianism on the one side, and on the other side, there is democracy. In this conflict, we have to decide what we are going to do. These fundamental rights can come to be exercised only by that society and those individuals who have a due respect for the law, who have a due respect for fundamental rights of other people along with themselves, and who therefore are prepared to behave themselves with a due sense of responsibility and restraint. Wherever such conditions are not obtained and wherever there are groups and parties who organize and make it their business to destroy the State and try to capture the State, certainly it would not be possible for any State or Society to respect these fundamental rights. That is the first pre-requisite for the exercise of these fundamental rights.”
He, therefore, expressed apprehension that “another thing is it is not the Supreme Court which is going to ensure the exercise of this fundamental right to individuals or groups as much as an individual’s and group’s own capacity to stand up to its own fundamental rights and make the necessary sacrifice.” He therefore advocated Satyagraha in a non-violent and Gandhian fashion and called it a safeguard for citizens’ fundamental rights.
He, therefore, lamented that a “state which is not prepared to restrain its own unorganised or disorganised majorities, who believe in inflicting private punishment upon various people, whether they are organised or not, such a state does not deserve to exist… It is also quite possible that when an organised majority is functioning through the State and begins to misbehave in this fashion, the Supreme Court might be set at naught as it happened in Nazi Germany and Fascist Italy.”
While he did say that Satyagraha need not be enshrined in the constitution and it can only be enshrined in a capacity of people to sacrifice, he said: “If ever any group or individual were to try to establish totalitarianism in this country, especially to establish a totalitarian State, then it will be the sacred duty of the Supreme Court as well as that of the President of the Republic of this country to see that this constitution is maintained at all costs, and these fundamental rights are not allowed to be exercised by those people or groups in such a way as to jeopardise our society.”
Dr. Ambedkar allayed these fears by saying that even in proclamation of emergency, only Rights under Article 13 now Article 19 can be suspended and that all other Articles and rights guaranteed in Part III will remain intact and that none of them would be affected.
Constitutional framers therefore also gave us Article 226 and empowered the high court to issue writs orders or directions for the enforcement not only for fundamental rights but for any other purpose. This was again an extraordinary measure of protection for citizens.
While creating sub-ordinate courts in Chapter VI Dr. Ambedkar stated on 16th September 1949, “Sir, the object of these provisions is two-fold: first of all, to make provision for the appointment of district judges and subordinate judges and their qualifications. The second object is to place the whole of the civil judiciary under the control of the high court.” The magistracy was also put under the control of the high court. Dr. Ambedkar felt that subordinate judiciary would have full protection of the high court under the provisions so made.
To make the task of the judiciary easier in protecting the fundamental rights of the citizens, constitutional framers came up with an ingenious Article that is Article 8 now Article 13, which provides for: “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void the expression “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.”
It also declared that existing laws that were inconsistent with the fundamental rights chapter were to be void. This is an amazing provision and a deeming fiction created by the constitution makers. It is a shield to preserve fundamental rights against every such governmental action to laws, ordinance, orders, bye-law, rules, regulations, notifications, etc. all that a citizen is required to show to a court – high court or Supreme Court – or for that matter any other court that the government actions violate protection under Part III and therefore the action is void. The court has necessarily an obligation to accept this position. No actual declaration from the court is required for it to be void. This is an unusual protection for citizens and also a shot in the arms of the judiciary.
The constitution thus strives to make our judiciary independent of the executive and empowers it with sufficient powers to protect the fundamental and constitutional rights of the citizens. Throughout the Constituent Assembly debates member after member expressed apprehension about the independence of the future judiciary. The manner of appointment of judges and their retiring age in the high court and Supreme Court raised great debate and so did the appointment of retired judges to government posts.
Their qualification and experience were also debated. Pandit Jawaharlal Nehru himself stated on 24th May 1949: “It is important that these judges should be not only first-rate, but should be acknowledged to be first-rate in the country, and of the highest integrity, if necessary, people who can stand up against the executive government, and whoever may come in their way.”
Dr. Ambedkar himself stated on that day: “With regard to this matter, I quite agree that the point raised is of the greatest importance. There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. …The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.”
He felt that however eminent the chief justice may be, he is “a man with all the failings, all the sentiments and all the prejudices which we as common people have” and therefore, he felt: “I think, to allow the chief justice practically a veto upon the appointment of judges is really to transfer the authority to the chief justice which we are not prepared to vest is the President or the government of the day. I, therefore, think that that is also a dangerous proposition.”
Sadly, the Supreme Court in the second judge’s Case (Supreme Court Advocates on Record Association & Ors. Vs Union of India (1993) 4 SCC 441) has laydown the law giving the Chief justice (later through collegium), a veto creating that very dangerous proposition Ambedkar wanted to avoid.
Dr. B.R. Ambedkar however did not realise the situation that India would be 70 years later and therefore did not prohibit acceptance of office by members of judiciary after retirement as desired by other members. In rejecting their demand, he said, “The judiciary decides cases in which the government, has, if at all, the remotest interest, in fact no interest at all. The Judiciary is engaged in deciding the issue between the citizens and very rarely between the citizens and the government. Consequently, the chances of influencing the conduct of a member of judiciary by the government are very remote and therefore, the provision which are applied to the federal public services commission have no place so far as the judiciary is concerned.”
He again reiterated this by saying that “I have said the relation between the executive and the judiciary are so separate and distinct that the executive has hardly any chance of influencing the judgment of the judiciary” it is surprising that be a even a great men like Dr. B R Ambedkar did not envisioned the situation that India has being placed in after 76 years of its republic.
Today the biggest litigant is government and largest number of cases especially in the high courts and Supreme Courts are between the government on one hand and litigants on the other. Be it in the garb of the welfare state expanding public services or stifling with the fundamental rights, the government interferes with the rights of citizens on a daily basis. Dr Ambedkar, a noble soul, could have never imagined that public life will de-generate to such an extent that the citizens will have to take seek redressal against the government on a daily basis.
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Professor K.T. Shah, while debating Article 40 sought to insert Article 40-A providing, there shall complete separation of powers as between the principal organ of the State viz, the legislature, the executive and the judiciary. He felt: “For one thing, Sir, if you maintain the complete independence of all the three, you will secure a measure of independence between the Judiciary, for example, and the Executive, or between the Judiciary and the Legislature. This, in my view, is of the highest importance in maintaining the liberty of the subject, the Civil Liberties and the rule of law. If there was contract between the Judiciary and the Legislature, for instance, if it was possible to interchange between the highest judicial officers and the membership of the legislature, then, I am afraid, the interpretation of the law will be guided much more by Party influence than by the intrinsic merits of each case.”
He further said: “If contact or connection is maintained between the Judiciary and the Executive organs of the State, there is also the possibility of undue influence, of misleading, of misdirecting and mis-influencing those who are appointed to interpret the constitution, those who are appointed to be guardians of Civil Liberties, those who have to administer justice.”
He was aware that “in the environment in which we are living, in the traditions under which our judicial system has been evolved, I am afraid justice is a very costly luxury” and what has evolved with time is the “most costly, most wasteful, a most extravagant system of legal advice and legal assistance by professional lawyers, which only those who have undergone protracted litigation know how costly it is, how confusing, and how almost prohibitive it is, to ordinary mortals.”
He feared: “But also the possibility of translation from a high judicial office to an equally high or sonorous executive office; so long would your Judiciary be open to suspicion, so long your administration of justice would suffer by personal privileges or personal ambitions, and so long, therefore, you will not be able to maintain your civil liberties to the degree and in the manner of purity that is highly desirable in a country like this.”
Prof. Shibban Lal Saksena even remarked, “In regard to this I heard one of the most eminent authorities in the Assembly say, “Today the High Courts are not independent; they are influenced by the political consequences of their actions. I hope in future our Supreme Court will be free from these influences and that they will do what is necessary and observe the principles inherent in this constitution.”
Dr Ambedkar merely retorted saying on 10th December, 1948, “There is no dispute whatsoever that the executive should be separated from the judiciary,” but did not accept the amendments as proposed. True, Article 39A (now Article 50) has been incorporated as a directive principle to provide for a separation of judiciary from the executive but, as Dr Ambedkar said that “we deliberately did not make it a matter of fundamental principle, because if we had made it a matter of fundamental principle it would have become absolutely obligatory instantaneously on the passing of the constitution to bring about the separation of the judiciary and the executive”.
Original Article 39A provided three years limit which was subsequently deleted therefrom. By Dr Ambedkar himself but yet he called the Article to be “an imperative obligation”. However, Dr. Bakshi Tek Chand expressed strong fears stating, “One word more I have to say in this connection and that is, that with the advent of democracy and freedom, the necessity of this reform has become all the greater. Formerly it was only the district magistrate and a few members of the bureaucratic Government from whom interference with the judiciary was apprehended, but now, I am very sorry to say that even the ministers in some provinces and members of political parties have begun to interfere with the free administration of justice.”
Shri Lokanath Misra even went further to say that “therefore, the mere separation of the judiciary from the executive will not serve our purpose and We require something more” and suggested that looking at the state of affairs of the legal profession as it was “Therefore I say that unless the professions of law and medicine become a state business, you cannot have proper administration of justice either for rights or for health and disease.
So, why did the Constituent Assembly debates so much on the independence of judiciary and why did it empower the Supreme Court and the high courts with powers and duties to protect those rights? Because, throughout the debates on fundamental rights chapter, members after members have expressed apprehensions about the state of affairs in the country prevailing then and that will prevail in the future.
Professor K.T. Shah on 1st December, 1948 said, “The liberty of the person, ever since the consciousness of civil liberties, has come upon the people, has been the main battle ground of the autocrats and those fighting against them. In no single instance other than this has the power of autocracy wanted to assert itself against the just claims of the individual to be respected in regard to his personal freedom. The liberty of the person to fight against any arbitrary arrest or detention, without due process of law, has been the basis of English constitutional growth, and also of the French Constitution that was born after the Revolution. The autocrat, the despot, has always wished, whenever he was bankrupt of any other argument, just to shut up those who did not agree with him. It was, therefore, that any time the slightest difference of opinion was expressed, the slightest inconvenience or embarrassment was likely to be caused by any individual, the only course opens to those who wanted to exercise autocratic power was to imprison or arrest or detain such a person without charge or trial.”
Opposing to Sub Article (2) to (6) in Article 19 as they stand today, Mehboob Ali Beg Sahib Bahadur said that it is only in the German Constitution that we find restrictions such as those in clauses (2) to (6). “It is only in the German Constitution that the fundamental rights were subject to the provisions of the law that may be made by the legislature. That means that the citizens could enjoy only those rights which the legislature would give them, would permit them to enjoy from time to time. That cuts at the very root of fundamental rights and the fundamental rights cease to be fundamental. I dare say, Sir, you know what was the result. Hitler could make his legislature pass any law, put Germans in concentration camps without trial under the provisions of law made by the legislature of Germany…Totalitarianism, fascism was the result.”
Shri K. M. Munshi said, “But the public opinion has changed considerably since and now that we have a democratic government a line must be drawn between criticism of government which should be welcome and incitement which would undermine the security or order on which civilised life is based, or which is calculated to overthrow the state….As a matter of fact the essence of democracy is criticism of government.”
Sardar Hukum Singh again objected Sub-article (2) to (6) of Article 19, “If the other countries like the U.S.A. have placed full confidence in their Judiciary and by their long experience it has been found that the confidence was not misplaced, why should we not depend upon similar guardians to protect the individual liberties and the State interests, instead of hedging round freedom by so many exceptions under these sub-clauses?”
Dr Ambedkar however defended the provision saying that “now the fundamental article is Article 8 which specifically, without any kind of reservation, says that any existing law which is inconsistent with the fundamental rights as enacted in this part of the constitution is void. That is a fundamental proposition. Therefore, the drafting committee felt that they have laid down in Article 8 the full and complete proposition that any existing law, in so far as it is inconsistent with the fundamental rights, will stand abrogated.”
He therefore felt that only “reasonable” restrictions were permissible and the existing law was saved only to a limited extent and only if it is not in conflict with the fundamental rights.
The constitution of India is to empower the people of India and make the individual personalities to grow without any hindrance in a civilised society and in civilised manner. The state is secondary or sub-servient to the citizens under our constitution. The state has been prohibited from interfering with individuals’ fundamental rights so to allow an individual to grow in philosophical or spiritual manner in mind and body.
Individual has freedoms which are sacrosanct and necessary for that growth. The entire scheme of the constitution providing for the creation of the governments at the federal and state levels, and its functionaries, the legislature, be the parliament or state legislatures, other constitutional authorities – the Election Commission, the CAG, etc are all created and do exist with those limitations.
Judiciary is therefore the arbitrator and interpreter of the constitution and guarantor of those rights. Time again Supreme Court has declared itself to be the ultimate protector of the fundamental rights calling itself Sentinel on the Qui Vive and ultimate guardian of the Rule of law. It even went to the extent in saying in the early 1950s the writ under Article 32 must be entertained because Supreme Court has not just the power but duty to entertain the same.
Yet, over the last seven decades the judiciary has indeed been unable to protect the fundamental rights of the citizens in letter and spirit. There is, serious erosion of the constitutional values and principles enshrined in the preamble and dilution and many a times negation of fundamental rights of the citizens. Constitutional framers wanted it to be strong and independent even while expressing fears that it may be loose its independence.
The constitution has not failed. It is immortal. Sadly, the people who were called upon to administer it have failed. This was the apprehension expressed by the chairman of the Constituent Assembly, Dr. Rajendra Prasad, who became the first president of India, as also Dr. B.R. Ambedkar. Clearly, as feared by Dr. Ambedkar, man has become vile, which has led to the state of the affairs as it exists today. However, we too have failed, as we have not mustered sufficient strength to stand up and follow the ideals of Mahatma Gandhi and carrying forward Satyagraha in a non-violent manner – as Prof. Ranga wanted for upholding our rights, preserving our dignity, and protecting our liberties.
Let us hope and trust that the future has stored a better India, with a strong democracy and complete and truthful enforcement of fundamental and constitutional rights so to enable citizens personalities to develop fully and spiritually.
Thanks.
Dushyant Dave is a Senior Advocate before the Supreme Court and former president of the Supreme Court Bar Association of India.