A Commemorative Remembrance And Tribute

The aspiration to make power impersonal and its exercise accountable has been the motivation for constitutions and constitutionalism. A constitution is about division, distribution and management of State power in such manner as to prevent arbitrariness and establish accountability to law. A constitution is the very life breath of a nation and the vehicle for its progress. It is framed for ages to come and designed to approach immortality as nearly as human institutions can. Constitutionalism is an attempt to establish the supremacy of law, its essence is the submission of politics to law.

The Constitution of India is one of the most comprehensive and well drafted in spite of its elephantine size. Our Constitution represents a summit of consensus in India's political history. It manifests the best in our past traditions, it provides a considered response to the needs and aspirations of the present and possesses sufficient flexibility to handle and weather the requirements of the future. It is an instrument drawn with such meticulous care by a remarkably wise, articulate and erudite pantheon of persons of outstanding abilities and backgrounds who so well understood how to make language fit their thought and vision.

They accommodated diverse points of view, debated with an open mind, considered and reconsidered ideas and proposals, reviewed and evaluated comparative experiences on the working of similar provisions and institutions in other countries, looked at the constitutional canvas in a futuristic perspective, aware of India's political history, culture, socio-economic dreams and objectives, judicial- legal attitudes and principles, conscious of India's wellsprings of strengths and recesses of weaknesses and helped to raise a magnificent temple of liberty based on the import of unity in the mosaic of diversities and forward looking national self-confidence. Accommodation and concord characterize and underpin our Constitution. It has established a sovereign, socialist, secular, democratic republic. Apart from providing a broad framework of government, it endeavours to protect liberties and secure justice. It represents a charter of power granted by liberties and not a charter of liberty granted by power. Our Constitution is rightly said to be a precious heritage. It has been described as a sublime constitution.

The Constituent Assembly met for the first time on December 9, 1946. This year we enter the platinum jubilee of that occasion. It is appropriate to recall all this and the founding fathers and remind ourselves of certain fundamentals.

The inaugural session was presided over by Dr. Sachchidananda Sinha as provisional Chairman. He was an eminent legal scholar as also a consummate advocate. In his inaugural address he quoted the memorable words of Joseph Story, a great jurist and former judge of the US Supreme Court: "The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful as well as useful; its arrangements are full of wisdom and order; and its defences are impregnable from without. It has been reared for immortality, if the works of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created ….by the virtue, public spirit and intelligence of the citizens. They fall when the wise are banished from the public councils because they dare to be honest, and the profligate are rewarded because they flatter the people in order to betray them." This is truly prophetic. Story had also insightfully observed, "It depends upon the present age, whether the national constitution shall descend to our children in its masculine majesty, to protect and unite the country; or whether, shorn of its strength, it shall become an idle mockery, and perish before the grave has closed upon the last of its illustrious founders."

On August 29, 1947 the Constituent Assembly appointed the Drafting Committee to draft the Constitution. At the first meeting on August 30, 1947 Dr. B.R.Ambedkar was elected Chairman. The other members of the Committee were Alladi Krishnaswami Ayyar, N.Gopalaswami Ayyangar, K.M.Munshi, B.L.Mitter, D.P.Khaitan, Mohammad Sadulla. On Khaitan's demise, his place was taken by T.T.Krishnamachari. N.Madhava Rau replaced Mitter who resigned due to ill-health. The basic task of fashioning the Constitution was of this Committee. The Drafting Committee and the Constituent Assembly were ably assisted by the Assembly's Secretariat. Two names, however, stand out and deserve special mention and compel our admiration and gratitude. Those heroes remain largely forgotten. It is necessary that we remember and honour them.

Sir Benegal Narsing Rau was the Constitutional Adviser to the Constituent Assembly and brought to his work his brilliance and rich experience. He prepared the first draft which was the basis for discussion. That draft had marginal notes of reference to the different Constitutions. B.N.Rau travelled to various countries and held personal discussions with leading constitutional authorities there. The 'Due Process' clause was not included in our Constitution as a result of such discussions. However, by accepting the amendment proposed by Thakurdas Bhargava incorporating 'reasonable' and ensuring that the restrictions imposed on various guaranteed freedoms are reasonable in the view of the courts, almost the same result has been achieved in that area. B.N. Rau's role in the making of the Constitution is seminal. Justice Frankfurter was so impressed with him that he remarked, "If the President of the USA were to ask me to recommend a judge of our Supreme Court on the strength of his knowledge of the history and working of the American Constitution, B.N.Rau would be the first on my list." Indeed, great praise from high authority and very well deserved. It is necessary to refer to the tributes paid to him by Dr. Ambedkar, regarded as the father of the Constitution and Dr. Rajendra Prasad, the President of the Constituent Assembly at the conclusion of the making of the Constitution. Dr. Ambedkar said, "The credit belongs partly to Sir B.N.Rau, the Constitutional Adviser to the Constituent Assembly who prepared a rough draft of the Constitution for the consideration of the Constituent Assembly." Dr. Rajendra Prasad said that Rau 'was the person who visualized the plan and laid the foundation of our Constitution'. "I must convey my own thanks and that of the House to our Constitutional Adviser Shri B.N.Rau who worked honorarily all the time that he was here, assisting the Assembly not only with his knowledge and erudition but also enabled the other members to perform their duties with thoroughness and intelligence by supplying them with the material on which they could work."

The other person who shines in the galaxy and to whom the nation owes a deep debt of gratitude is Surendra Nath Mukherjee. S.N.Mukherjee was the Joint Secretary, Constituent Assembly and the chief draftsman of the Constitution. It was he who meticulously drafted the various provisions of the Constitution that was finally adopted. Paying tribute to him in the Constituent Assembly on November 25, 1949, Dr. Ambedkar said, "Much greater share of the credit must go to Mr. S.N.Mukherjee, the chief draftsman of the Constitution. His ability to put the most intricate proposals in the simplest and clearest legal form can rarely be equalled, nor his capacity for hard work. He has been an acquisition to the Assembly. Without his help the Assembly would have taken many more years to finalise the Constitution." Very high encomium and richly merited and earned. President Rajendra Prasad said on November 26, 1949: "Tribute has been justly paid to Shri S.N.Mukherjee who has proved of such invaluable help to the Drafting Committee." In a comprehensive analysis of the Constitution Mukherjee wrote, "It is true that many of the provisions in the Indian Constitution are in other Constitutions left to be dealt with by common law, but the reasons for such detailed provisions will be apparent if one only remembers the vastness of the country, the diversities of its population and the varieties of interests therein requiring safeguards." Mukherjee's place among the front rankers in the making of our Constitution is secure.

A constitution, it is said, embodies and expresses the goals and aspirations of the people depending upon the history of that society. It contains certain core political values and beliefs which cannot be tinkered with by transient public opinion. The limitations imposed by constitutional law on the actions of government are essential for the preservation of public and private rights, notwithstanding even the representative character of political institutions. The creation of constitutional government, says Raymond Moley, is the most significant mark of distrust of human beings in human nature. It signalizes a profound conviction, born of experience, that human beings vested with authority, must be restrained by something more potent than their own discretion.

Parts III, IV and IV A may be said to be the conscience of the Constitution. The Constitution has adopted a parliamentary system of government. It has set up a broad federal structure which is resilient enough to adjust according to the exigencies. There is a division of powers not only among the three wings but also between the Centre and the States. None of the wings or units has a monopoly of wisdom and in the pattern of functional distribution of State power there is hardly any room for real supremacy. Limited government and judicial review constitute the essence of our constitutional system. It involves three main elements: (i) a written Constitution setting up and limiting the various organs of Government; (ii) the Constitution functioning as a superior law or standard by which the conduct of all organs of government is to be judged; (iii) a sanction by means of which any violation of the superior law by any of the organs of government may be prevented or restrained and, if necessary, annulled. This sanction, in the modern constitutional world, is 'judicial review' which means that a court of competent jurisdiction has the power to invalidate the act of any governmental agency, including the legislature on the ground that it is repugnant to the Constitution.

As Justice Bhagwati said in the Assembly Dissolution case (AIR 1977 SC 1361) "… the Constitution is supreme lex, the paramount law of the land, and there is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of that authority …. It is for the Court to uphold the constitutional values and enforce the constitutional limitations". The judiciary becomes the final judge of all acts purported to be done under the authority of the Constitution. Judicial review, therefore, does not mean supremacy of the judiciary, but that of the Constitution. As the umpire or arbiter in the federal system, the judiciary's function is to act as the guardian of the Constitution. This power is to maintain the supremacy of the Constitution and is vested generally in the highest federal court. This gives it an image of supremacy and a view is held that it is supreme. But it is also limited and confined. As Setalvad put it in The Common Law in India, Hamlyn Lectures (1960), (p.187), "We have in truth not the supremacy of the courts but the supremacy of the Constitution." Verily, the structure of the government under our constitutional scheme is so designed that each branch is a sentinel on the qui vive against the other two, lest they become too powerful or autocratic. The Court's fidelity to the Constitution secures its own subordination, though it has the last word in the interpretation of the Constitution. Judicial supremacy is really a euphemism for Constitutional supremacy or the supremacy of the Constitution with the judiciary –constituted as its monitor, defender and protector. And what is the sanction to keep the judiciary also within the bounds of its powers? It is, in a large measure, the judges' own sense of self restraint.

In the field of constitutional law the delicate balance between the various institutions whose sound and lasting quality Dicey in The Law of the Constitution(10th edn, 1959, pg 3) likened to the work of bees when constructing a honeycomb is maintained to a large degree by the mutual respect which each institution has for the other. In British Railways Board vs. Pickin [1974] 1 All ER 609 (618), Lord Reid observed that for a century or more both Parliament and the courts have been careful to act so as not to cause conflict between them. This is as much a prescription for the future as it was for the past. cf: R (Jackson) v. A.G.[2005]4 All ER 1253 at 1293. This is the profound truth and is equally relevant in India too!

No Constitution, however, noble its ideals or lofty its exhortations is self executing. It needs the support of ancillary legal systems of both common law and legislation. It is worthwhile to recall what Sir Alladi Krishnaswamy Aiyer, one of the principal architects of the Constitution said at its very inception: "………it need hardly be pointed out that the proper functioning of the Constitution will to a large extent depend upon: ancillary or organic laws passed to implement the Constitution; the utilization of the principles of the common law of India which has grown by the adoption of the principles of English Common Law as a matter of justice, equity and good conscience; the acceptance of conventions in the working of our Constitution similar to those obtaining in other Constitutions and judicial decisions interpreting the Constitution, the Supreme Court being the final arbiter. Above all, it is the law abiding spirit of the average citizen in India that I regard as the greatest asset in the proper working of the Constitution."

Our problem today is a combination of vast social and economic disparities and fragile institutions on the one hand and the apathy and indifference of the people on the other. Every institution appears to be failing. As the poet said, Things fall apart; the centre cannot hold;/ Mere anarchy is loosed upon the world. The Constitution belongs to us, the people. In the unforgettable words of Justice Felix Frankfurter, "Democracy involves hardship- the hardship of the unceasing responsibility of every citizen. Where the entire people do not take a continuous and considered part in public life, there can be no democracy in any meaningful sense of the term. Democracy is always a beckoning goal, not a safe harbour. For freedom is an unremitting endeavour, never a final achievement. That is why no office in the land is more important than that of being a citizen." Therefore it is that we need to constantly remind ourselves that the Constitution- our treasured inheritance which we have to cherish- is presently in our keeping and that we at once its servants and its masters renew and maintain our allegiance to the fundamental charter. May all of us aspire to the same noble contribution as the best of our forebears have made and be worthy of them and their great legacy and traditions.

[The author can be reached at sudhishpai.com]