Only Way To Protect Constitution Is To Practise It, Otherwise It'll Die : S Muralidhar

Dr. S. Muralidhar, Senior Advocate and former Chief Justice of Orissa High Court, on Friday, said that the only way to protect the Constitution is to practice it and urged law students to turn to it when faced with questions about how to live in a diverse society.

He emphasised, “The Constitution was written with the blood and sweat of the lived experience of the framers of the Constitution. The only way to protect it is to practise it, otherwise it will die.”

He was delivering a lecture on “Transformative Constitutionalism and the Role of the Judiciary,” organised by the Kochi International Foundation and the National University of Advanced Legal Studies (NUALS).

He advised students, “Whenever you have doubt on what choices to make, you may have the inclination to go to a philosophical text or to a religious text, but the natural instinct should be to go to the Constitution. It reminds you that India is a variegated society, it has diversity and that's the richness of India and you should learn to respect that.”

He cited incidents of caste discrimination even today, including among judges, highlighting that a judge of the Allahabad High Court purified his chamber because it was previously occupied by a Dalit person, despite 75 years of Article 17, which prohibits untouchability.

“If it were being enforced seriously, after 75 of the years of the Constitution we would not have people still practicing untouchability, we wouldn't have a ruling party MLA purifying his house because the person who occupied it before him was a Dalit. He needs to be publicly reprimanded by his party from doing this but he did not think twice to do it. There was a judge in Allahabad cleaned his chamber with gangaajal because the previous occupant was Dalit. These are the harsh facts of our lives in India. Dalit men cannot ride a horse on their own wedding day.”

Addressing criticism that the Constitution is full of borrowed provisions, Muralidhar said the correct view is that the framers studied various constitutions and adapted what would work for India. He said they also added unique provisions. He emphasised, “We begin the Preamble by giving ourselves a Constitution. Somebody didn't give us those rights. We proclaimed those rights for ourselves.”

He said the Constitution recognised the rights people already had and sought to ensure substantive, not just formal, equality. He said the Constitution reflected the aspirations of Indians who wanted an egalitarian society that respected individual dignity. Referring to the Delhi High Court's judgment decriminalising consensual sexual acts of adults under Section 377 of the IPC, he said, “The one thing which appealed to us as judges was this concept of dignity of individuals.”

He spoke about liberty, equality, and fraternity as interconnected values. “The whole structure becomes weak if you remove one.” He recalled an incident in Bangalore where rumours led to panic among people from the North East, which, he said, showed how fragile societal arrangements were to protect fraternity.

“There are many identities in all of us. The Constitution helps us to unravel those individual identities, and why those identities are so important. Why is it necessary for a Muslim girl from Bangalore to wear hijab and why we need to respect it, why can't members of backward classes or scheduled castes celebrate the festivals or marriages the same way as the dominant class does – these are all questions posed to us directly on the reading of the constitution. It tells us what we should do to make this Constitution work not just for ourselves but all of those others who are weak, under privileged, deprived of opportunities”, he added.

Muralidhar said fraternity as understood by Ambedkar meant brotherhood among all Indians. He discussed Article 15, calling it a “transformative provision” that enforces horizontal equality, meaning it is a right enforceable not just against the State but against other individuals too.

He spoke of how young interfaith or inter-caste couples come to court not seeking protection from the State but from parents and society. He narrated how different judges approach such petitions. He shared a conversation with a judge from North India who dismissed concerns about honour killings, saying parents wouldn't harm their children. Justice Muralidhar said such attitudes showed subjectivity in habeas corpus petitions and illustrated the barriers to transformation.

Muralidhar highlighted discriminatory attitudes among Indians abroad, who are offended when mistaken for Pakistanis, but discriminate against others back in India. He urged law students to practice Article 15 at an individual level and recommended reading the Preamble and Article 15 every morning.

He listed several real-world examples that test Article 15—“In rural areas there are areas where Dalits cannot walk. In cities some people do not let out their homes to Muslims. There are many boards which say that this place will not be let out to people who eat non-vegetarian food.”

Recalling historical events like temple entry and well water sharing agitations, he said upper castes still prevent Dalits from drawing water in some villages. He questioned whether having Dalits in government offices could be called an achievement.

“Many people will say 'this is a very small percentage. No society is perfect. Yesterday they could not even come to these offices but today see the Central secretariat where so many of them are there.' But is this an achievement? The true achievement would be when you do not recognise this as a difference. That is the true transformation. Transformative constitutionalism starts with the individual”, he emphasised.

Speaking of Articles 17 and 23, which criminalise untouchability and prohibit human trafficking and forced labour, Justice Muralidhar said they are socially transformative because they criminalise social practices. “There is no Constitution which criminalises something. There are penal laws for that. But our Constitution does. This is the transformative aspect of this Article 17 and 23.”

He then spoke about the 73rd and 74th amendments to the Constitution, which decentralised power through panchayats and urban local bodies and gave reservations to persons of Scheduled Castes and women. He called these seeds of transformation. He said transformation is happening slowly, not at the desired pace, but surely.

He mentioned how the Mandal agitation gave economic power to the underprivileged. Muralidhar then acknowledged his own privilege and said he once resented reservations because he did not understand what it means to face discrimination.

“I came from a very privileged family and was very resentful towards reservation. I had no idea what it is like to lead the life of a child of a sweeper…I cannot even live that life vicariously. I had no understanding of what it means to be discriminated against. When you belong to a certain class you automatically discriminate against others because you don't know what it is to be on that side. It only takes a life in law to understand the true purport of these constitutional provisions.”

He referred to villages in Madurai where Dalits are not allowed to file nomination papers and to booth capturing under previous governments in West Bengal. He said without proper social conditions; people cannot freely exercise their constitutional rights. He highlighted low voter turnout in Jammu and Kashmir because of fear from both militants and state forces. He said this frustrates the democratic process.

On economic democracy, he said the State must reduce inequality in status. He called the Dowry Prohibition Act a failure.

“There is not a single religious community in India which doesn't take dowry. I am talking about Christians I am talking about Muslim, I am talking about Hindus. Any community across religious denominations. We talk of Article 15 in such glowing terms but the matrimonial column will tell you of a very different India.”

He noted that some bottom-up laws have succeeded, like MNREGA and RTI, while others, like the Lokpal Act, have failed.

Muralidhar highlighted that systemic discrimination persists, such as employment exchanges automatically registering sanitation workers' children for sanitation work. He criticised the societal belief that certain tasks are ordained by birth, like Brahmins being ordained to be learned or women to take care of the family, produce children, and serve their husbands. He referenced the film The Great Indian Kitchen and said that it shows the mirror to the society.

“These things are tying ourselves into knots of darkness. We have to educate ourselves, liberate ourselves. Constitutional morality is believing in the three values of liberty, equality and fraternity”, he said.

Muralidhar rejected the idea that Directive Principles of State Policy are unenforceable, as the Parliament has made statutes to make them enforceable. However, he highlighted the lack of will to enforce them. He said, “One example is the Prohibition on Employment of Manual Scavengers Act. We have all the statutes but nothing is happening because there is no will because this constituency is numerically small but has no business being discriminated against in India of the 21st century.”

He said the numerical size of the affected community should not be an excuse. “Don't buy into argument that the number is very small. Remember Gandhiji's talisman. Our measures should be to improve the lives of the weakest person. In a democracy governed with the rule of law you have to think of everyone. If you look into the entire Kerala state the Biharis will be a few lakhs or a few thousands but that doesn't mean you can discriminate against them.”

He urged students to study the Constitution using other disciplines like economics, sociology, and political science. “How else will you address this issue of having 6,31,000 persons in India displaced on account of violence, 2.5 million due to natural disasters, 21 million due to development… 18 million children live on the streets in India and this is not out of choice. You will hear someone say that they must have done something in the past life but the Constitution does not allow you to have such facile explanations. We have to take ourselves seriously.”

He concluded that transformation must start with individuals. “In our head we don't have to clean our toilets, we don't have to collect our garbage. We can create the mess but somebody else will clean it up. That thinking has to go. Only then you can have a personal transformation only then you can have a societal transformation only then you can have a transformation in the country.”

He added, “Merely because I have reserved seats for government jobs, I have reserved seats in the parliament, I have got quotas, I have given scholarships, that by itself will not mean anything. How you treat others how do you respect the dignity of others what do you impart, all that matters you should know what discrimination you are causing to others. That has to be deeply ingrained.”

He called for awareness of discrimination, and taking positive steps—looking someone in the eye, smiling, putting a hand on the shoulder—as acts of fraternity.

The lecture can be watched here.