Indian Constitution: A shining full moon

On this day, 66 years ago, our Constitution was adopted after three years of extensive debate.

This year happens to be the 800th centennial year of Magna Carta. Today is particularly more important to us as 66 years ago, our Constitution was adopted after three years of extensive debates by the Constituent Assembly.

Interestingly, this Assembly was elected by provincial legislatures under a British Act of Parliament and not through adult suffrage. As per Article 394, 15 articles came into immediate effect and rest on January 26, 1950.

Our written Constitution today broadly comprises of Assembly debates, Constitution book and various amendments and the Unwritten Constitution can be studied in form of ‘Judicial Principles’ [Derivative (Judicial Legislations), Doctrinal (Basic Structure, PIL etc) and Institutional (Collegium, SITs etc)]  and ‘Constitutional Conventions’(for example, appointment of senior most judge as the Chief Justice of India).

Fortunately, unlike Magna Carta which was almost immediately nullified our written Constitution, has survived several tragic attempts to dilute its influence and the unwritten part has time and again saved democracy.

Attacks on constitutional spirit began right from 1951 when the first constitutional amendment was passed which in a nutshell intended to evade judicial scrutiny by pushing legislations inside the new Ninth Schedule. Notably, this was passed by the same Constituent Assembly which drafted the Constitution as the first Lok Sabha elections were conducted in 1952.

Its primary agenda was to nullify a judgment of the Patna High Court wherein one of the agrarian reform legislations was struck down. This, though unintended, triggered an era of conflict over guardianship of the Constitution between Parliament and the Supreme Court.

After checking land reforms, in landmark judgments, attempts to control the press by Parliament were quashed in Crossroads and R C Cooper cases. As the government was inserting legislations in the Ninth Schedule whimsically, in 1967, in the Golaknath case, the Sup-reme Court held that Parliament cannot take away fundamental rights and prospectively overruled such legislations.

To nullify this, in 1971, 24th and 25th Amendments were introduced. The 24th Amendment stipulated that Parliament could amend any provisions of the Constitution under Article 368. These amendments were finally partially struck down in Kesavananda Bharati (1973) and it was held that no amendment can be passed which violates ‘basic structure’ of the Constitution.

A 13-judge bench was immediately constituted to nullify it which thankfully could not completely re-hear it. However, this did not stop the government from nationalisation of various sectors and abolition of privy pu-rses of erstwhile rulers. In 1975, during emergency, the 39th Amendment stating that any law made by Parliament before its commencement shall not apply to election of president, vice president, prime minister and Lok Sabha speaker was passed.

The Supreme Court quashed it in Indira Gandhi v Raj Narain. The government then sought to develop a ‘committed judiciary’ and promoted favouring judges as the chief justice twice by superseding the seniority convention.

In another direct attack, the 42nd Amendment was introduced to substantially reduce the power of judicial review of constitutional courts. A number of its provisions were later removed in 43rd and 44th amendments by the successor government and remaining ones were quashed in Minerva Mills [1980].

This forced the judiciary to deinstitutionalise itself from being a ‘legal institution’ and get transformed into a ‘governing institution’. This led to advent of Public Interest Litigations and rise of judicial activism.

A plethora of cases were decided expanding the ambit of Article 21 to include various fundamental rights and environmental jurisprudence was crafted inside the Constitution itself through judgments in T N God-avarman and M C Mehta cases.

The attempts at luring vote banks in the garb of reservation in public employment and educational institutions however continued and Articles 15 and 16 were interpreted and amended to nullify judgments in the Mandal case [1992], Virpal Singh Chauhan [1995] and Vinod Kumar [1996] via the 77th , 85th and 82nd Amendments.

In the latest blow to the Constitution, an attempt to encroach upon judicial appointments was made via the 99th Amendment to nullify judgments in the second and third Judges cases [1993 and 1998] by drafting the National Judicial Appointments Commission (NJAC). This amendment has been quashed in the fourth Judges case [Supreme Court Advocates on Record Association  v Union of India] recently.

Our Constitution is like a gua-rdian whose two sons (judiciary and legislature) are at constant slugfest to claim right over it. The founders thankfully inserted Articles 13 and 144 which mandate judicial review and that all three organs have to cooperate with the SC.

It is precisely because of this that the written constitution, though has been erased, rewritten and unwritten, still shines a full moon. Its greatest victory perhaps is that the tolerance interval between ‘I legislate - You quash – I legislate again’ dictum has increased.

This day has been notified as the ‘Constitution Day’ by the current ruling establishment. The winter session of Parliament also starts from today. Important ordinances and pending bills will be discussed. As pen pushers we hope the centurion amendment, if passed, will uplift the constitutional spirit.

(The writer is advocate, Supreme Court)