It was not a directly elected house that drew up India’s Consttution. The members of the Constituent Assembly were chosen ny the provincial assemblies of British India, which were elected on the basis of limited franchise. When the princely states merged in India they too were given representation in that house. Only a few princely states had legislatures. The representatives of states without legislatures were nominated by the maharajas. Although they were sent to the Constituent Assembly by legislatures and rulers who lacked representative capacity, the members believed they had the right to represent the entire people of India. In the belief that they the people wanted free India to be a democratic secular republic and that they bore the responsibility to realize that goal, they prepared a constitution that suited that purpose. And they wrote in the preamble that We the People of India are the makers of the Constitution.
Legal pundits had studied the constitutions of many lands and incorporated their best elements in the draft constitution. So it became the longest constitution in the world. The preamble proclaimed that its aim was to secure for all citizens justice, liberty, equality and fraternity. The unique character of our Constitution can be gleaned from this declaration. Equality, fraternity and liberty are ideas that emerged in France at the time of the Revolution. They very quickly won recognition worldwide as the fundamental principles of democracy. The most important factor that distinguishes our Constitution from other statutes of its kind is that places justice above these principles. It elaborates the concept of justice in these words: Justice, social, economic and political.
Most democratic countries have societies of a more or less homogenous kind. Social inequality is not a serious problem for them. What prompted the constitution makers to give primacy to justice was the realization that in this land, where the majority of the population had been subjected to graded inequality for centuries, fraternity and liberty cannot be ensured without first ensuring a modicum of justness. In the final analysis, the future of Indian democracy will be determined by success or failure in securing justice, social, economic and political. Much is happening in the country that does not accord with democracy. Those who wield power and those ranged against them indulge in such activities. Some are seeking to deny justice, some others to ensure justice.
Basically, all democratic constitutions divide power among the three limbs of the state, the Executive, the Legislature and the Judiciary, and provide for a system of mutual checks and balances. Our Constitution, too, provided for such a dispensation. But in half a century of working distortions have crept into the system of checks and balances. If the head of the Executive is an extremely powerful person the Legislature’s ability to keep it in check shrinks. Such a situation prevailed in the early years of Independence. Later the polity got fragmented and the Executive became weak. When the ability of the Executive and the Legislature to check each other declined, the Judiciary’s prestige grew as the lone establishment to which the citizens can turn for relief against wrong- doing by them. This provided the Judiciary an opportunity to enlarge its powers. Utilizing this opportunity the Supreme Court assumed the power to appoint judges.
The Constitution had vested the right to appoint judges in the President. He is required to act on the advice of the Union Cabinet. The Constitution, however, provides that the Chief Justice must be consulted in the matter of appointment of judges. In a judgment, the Supreme Court declared that the provision requiring consultation means the Chief Justice’s concurrence is required. The position now is that the President can appoint as judge only a person selected by the Chief Justice and two senior judges. This is quite different from what the constitution makers visualized. Moreover it does not accord with either democracy or commonsense.
The Constitution vests in the Court the right to interpret the provisions of the Constitution. The courts have enlarged this into a right to decide what the constitutional provisions must be. The present state of affairs suggests that the Judiciary is under the impression that it is the keepers of the Constitution and that the other, weakened institutions are ready to concede this status to it. A close look at the preamble will show that the Constitution has not granted to any limb of the state the onerous responsibility of being its keepers. It says We the People of India have given the Constitution unto ourselves. In other words, the People who are the makers of the Constitution are also its keepers.
In Jawaharlal Nehru’s time, a conflict arose between the Allahabad High Court and the Uttar Pradesh Legislative Assembly over their respective powers. When, on the advice of the Union Cabinet, the President sought the advisory opinion of the Supreme Court on the relative powers of the two institutions, it stated that each was supreme in its own sphere. However, subsequently, in a judgment, the Supreme Court observed that since all institutions derived their authority from the Constitution, it was the Constitution that was supreme. The quest for the source of authority must go beyond the Constitution. Where does the Constitution derive its authority from? The answer to that question is in the preamble. It derives its authority from We the People of India, who are both the makers and the keepers of the Constitution.
The Constitution is subject to changes. The changes in it must accord with the wishes of the people. We the People of India had vested the amending power in Parliament. Many of the changes that have come about in the Constitution through judicial interventions are in accord with the people’s wishes. But there have also been changes that are not in accord with them. The change in the provision relating to appoint of judges is one such. Many constitutional experts have said so openly. It is a mistake that needs to be corrected. It will be good for the Supreme Court itself to do this through a judgment. If it is not ready to do so, Parliament, as the body empowered to make changes in the Constitution, must fulfil that responsibility.
We don’t become a democratic society merely because elections are held once in five years. As the keepers of the Constitution, it is the duty of We the People of India to ensure that evevry constitutional institution discharges its duties properly. In view of the tendency among these institutions to overstep the limits of their power, civil society must be on guard and ensure that no institution makes inroads into others’ spheres. This is a process that must go on all the time.
Based on an article written for the Annual Number of Madhyamam, Malayalam daily