Idea Of India Is The Constitution Of India : Senior Advocate Indira Jaising

Jaising was speaking at a National Conference on "Constitution in a Changing India." This is a three-day conference and Jaising spoke on the topic 'Constitutional imperatives for an independent judiciary.'  

At the beginning of her address, she said that it is a matter of pride for her that students across the world are protesting over the genocide in Palestine. She added:

“Students are the future. They were in the leadership of the anti-Vietnam movement, which brought the war to an end. So, I hope that the protest of the students today will also bring this international war to an end.”

Speaking on her topic, she highlighted that the constitution was adopted at a time when the social-political situation of the nation was marred by inequality. Hence, the constitution became the document for restructuring India's ideas.

Taking a cue from this, she quoted a paragraph authored by the present CJI in the case of the Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors., (2019) 11 SCC 1 (Sabarimala temple case)

“Reading Dr Ambedkar compels us to look at the other side of the independence movement. Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence.”

Borrowing the above words, she said that the struggle is continuing, and that freedom is not a gift and is something we fight for on a daily basis.

Moving forward, she also underscored that our constitution seeks to dismantle hierarchy. She illustrated the same by citing examples of Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 16 (Equality of opportunity in matters of public employment) and 17 (Abolition of untouchability).

Right To Speak Out

Jaising went on to stress that one of the most important rights is the right to speak out. It is a very powerful tool, she said and added that the right to freedom of speech and expression and the right to organise is the only thing that most of us have.

“We're not the descendants of Adanis and Ambanis. They have many many ways in which they can influence governments.... But what you and I can do? We can use our voice inside and outside the Court and it is our powerful voice, it is the work that we do with our feet that gives us the evolution of constitution that we see in today.”

Independence Of Judiciary

Forming this base, Jaising spoke about the independence of the judiciary. Saying that the judges take an oath of allegiance to the Constitution of India, she posed whether the judges have been faithful to this oath. Answering the same, she said: “In my opinion, in recent years, we have not seen this. We have seen the emergence of an ideology which is considered to be an ideology as over and above the constitution.”

She also mentioned how judges have quoted from Vedas and Manusmriti to substantiate their judgments. Jaising opined:

“While you say that past is the past, this is my present and future and that is contained in the constitution if India. I have to live by it, I have to die by it but we see now a harking back to 1000 year civilisation…”

Elaborating, she said that the courts are bound by the constitution of India. India does not subscribe to the supremacy doctrine of parliament. Saying that no other Country has Article 32 in their constitution, a gift of Dr Ambedkar, Jaising said, “Our fundamental rights have become unenforceable. They have become only an affirmation of political intent and are implemented at the discretion of politicians or judges, which is completely contrary. You see, what is happening in our country, duties are overtaking rights. Everything is now our Kartavya. While I do not deny the importance of duties, can they ever be used to restrict the fundamental rights? The answer is no.”

Moving forward, Jaising also referred to the Prime Minister consecrating temple. She asked whether the constitution permits the same. Is there no difference between the sacred and the secular? Answering this, she said that while there is no problem with the right to freedom of religion, there is a place to practice it.

Referring to the pronouncement of the Magna Carta, she asserted that it took 800 years to achieve this separation of powers, and it is our duty to ensure that this is maintained.

“I read a headline recently and it attributed this statement to the Prime Minister and I quote "Ram is the idea of India. Congress cannot see it because they use foreign lenses". Do you agree with this statement? No, for me the idea of India is the Constitution of India. Well, if Ram is the idea of India then you do not need judiciary, you can go back to the days of divine justice.,” she added.

By the end of her address, she also shared her insights on the collegium system and said that the same is not being implemented in letter and spirit. She expressed her views on the appointment of Victoria Gowri as a judge of the Madras High Court and termed the same to be a “failure of the collegium system” and “lack of transparency”.

It may be recalled that a Bench of Justices Sanjiv Khanna and Justice B.R. Gavai had, last year, dismissed petitions filed by advocates from the Madras High Court challenging the appointment of Justice Victoria Gowri. Based on articles and statements of Justice Gowri, the petitioners had argued that she is unfit to be a judge as her statements amount to hate-speech against religious minorities, particularly Muslims and Christians. As the case was argued in the SC, the oath of office was administered to her. Is this the way the collegium system is meant to function?, Jaising asked.

In conclusion, the senior advocate spoke about NDPS, UAPA, and PMLA Act and how these laws do away with the constitutional principle of innocent until proven guilty. Illustrating, she cited an example of Section 50 of the PMLA that enables an ED to record the statement of the accused, which is admissible as evidence. This is only because an ED officer is not a police officer.

“This is the rule of criminal law today. It is FIR for the opponents and amnesty for your friends. It is not prosecution that you see in this Country, it is the persecution. It is here that you would expect the SC to rise to the occasion in their role of independent arbiters between the citizens and the State and to declare these laws as unconstitutional. We see instead that those who take case to the Court are told that you are the criminal. It happened to Teesta Setalvad….There is an abuse of criminal justice process. When abuse becomes policy, it is time for the Courts to deny the power of arrest to these institutions and it happened to the founder of News Click Prabir Purkayasta…”

Lastly, while answering the question asked by someone in the audience, Jaising said that it is only the legal profession which is going to protect the independence of the judiciary from the executive. They cannot reach the judges without going over our heads, and we will not allow them to go over their heads., she added.