In Constitution making, there are invisible forces that can never be and the spirit of tolerance, which is at a very very low ebb today.
The separation of powers between the legislature, executive and the judiciary form one of the basic tenets of the Constitution. The basic structure of the Constitution also envisages the supremacy of the Constitution, the republican and democratic form of government, the federal character of distribution of powers, secularism, separation of powers between the legislature, the executive and the judiciary and the independence of the judiciary. Addressing the Supreme Court Bar Association’s function on Constitution Day, Chief Justice of India Ranjan Gogoi stated that the cardinal constitutional value is quite simple and it is to ensure being fair towards others, then all problems will be resolved.
Through the decades, challenges pertaining to safeguarding the basic structure of the Constitution came up through different cases before the apex court. For instance, it has been a focal point of constructive debate that the crux of the famous Keshavananda Bharti case is that the Constitution has a basic structure and that basic structure is unalterable.
Supreme Court judge, Justice SA Bobde also spoke on the occasion of Constitution Day. “Each judge of the High Court and Supreme Court, the entire Cabinet and the President of India take an oath to uphold the Constitution. The so-called tensions between the three wings of the government has been considered to be very healthy and vital for for a democracy. Lord Woolf stated that this tension is ‘no more than that created by the unseen chains which hold the three spheres of government in position. If one chain slackens, the other needs to take the strain.”
A more elaborate interpretation was elucidated by Mr. Fali.S.Nariman at a separate event. “It is easier to draft a Constitution than to work it. We will never be able to piece together a Constitution in the present day even if we try, apart from the number of people who have different opinions today. In Constitution making, there are invisible forces that can never be and the spirit of tolerance, which is at a very very low ebb today. From decade to decade, regional parties have strengthened their roots, become far more vocal and dominant in Indian politics. We had our difficulties. Language, for instance. We almost broke up. India would never have been India if you read our history but for the language resolution that got passed by one vote, not because people wanted English and it was to keep the North and the South together and that is why it may continue to make One Nation. So, now Hindi and English are accepted as national languages.”
“One of the great things that have happened particularly after the 1980s, which I believe to be a creative judiciary, as enlarged the concept of right to life in Art 21 of the Constitution …it refers to your right to live. You can’t take it away. Not only the right to live, but there is also the right to a healthy life, the right not to be polluted. I always thought this was an overburden which was unnecessary but Prof Baxi rightly pointed out that we have a fundamental rights chapter in which Article 21 is there and we have a state policy chapter that was a closed book in a court of law. So what did courts the do? They expanded Article 21, therefore, the right to issue writs, orders were paramount and which I call as the searchlight provisions of the Constitution, Article 32 and Article 226 and Art 136,” the eminent jurist said.
So, are courts crossing the line when it comes to interpreting constitutional law? A valid question.
Mr. Fali S. Nariman further explained, ”See what the Ramayana really said. Sita asks Rama to fetch a deer. Rama goes in search of one, asking his brother to stand in guard. The golden magical deer is in fact the demon who distracts and cries out in Rama’s voice which distresses Sita. What does Lakshman do? He draws a perimeter line and says you must not cross this. Sita, out of compassion for a visiting guest who is Ravana in disguise, crosses the line and gives him food. Following this, Sita is abducted. Great constitutionalists apply this metaphor to courts. They say that you are forbidden by Art 37 of the Constitution to enforce by this order the large number of directive principles of state policy.”
“For the constitutionalists, the principles of state policy which cannot be enforced in courts of law is the lakshman rekha. However, since 1986, the Supreme Court, for the first time, changed this. Judges have, since then, crossed the lakshman rekha in matters relating to Part 4 simply because the state has failed to implement the directive principles of state policy. In so doing, the Judges sitting in Supreme Court have converted the primary human needs into human rights, making them enforceable. This is a great innovation that courts have done. As the Ramayana itself depicts, the Lakshman Rekha can be crossed only when necessary but when it is done, it is always and only for a good cause. That is the answer for those who say that the Lakshman Rekha cannot be crossed,” he added.
Speaking on the occasion of Constitution Day, Union Law Minister Ravi Shankar Prasad stated, “The Constitution is not only a document of empowerment but also a charter of inclusion of equity.Some people have observed that the Constituent Assembly was the paradise for lawyers. I strongly differ, there were eminent lawyers but they had suffered in jail, fought lathis and organised people of India behind Gandhiji.”
Supreme Court judges, Justices Madan Lokur, Kurian Joseph and Indu Malhotra were present at the Constitution Day function organised by the SCBA. Attorney General KK Venugopal briefly addressed the gathering, followed by SCBA President Vikas Singh.