( Full text speech of justice Dhananjaya Y. Chandrachud from workshop conducted by Bombay Bar Association on topic “why Constitution Matters”)

 

I’m extremely grateful to justice Sujatha Manohar for inviting me to speak today on a subject which is close to my heart “constitution”.

Although it does give me some leverage to conclude or at least put forth an adverse view that constitutions do not or perhaps may not matter. Doing that would firstly have us confronting the peddles of the collapse of our constitutional democracy and secondly for me the peril being out of my job. So, let me begin by stating which side of the line I stand. Our constitution does matter.

The Indian constitutional project did not commence on 1946 when the constituent assembly sat in new Delhi for it’s first session. It first accords in the battle fields of Bengal in the 1857 rebellion. Lokmanya Bal Gangadhara Tilak whose famous trial took place in this court room was among the first to call for Poorna Swaraj for many decades prior to the coming into the force of our constitution the Indian self-rule movement was a mass movement and encompassed many sections of society. The call was simple a governing document of the people by the people and for the people. The constitutional culture in India pre-dated  the coming into the force of our constitution. Before the advent of our constitution a well known demand emerged to establish  the participation of the peoples basic rules and principles of behavior which would constitute universally binding legal norms. The constitution was to  mark the transfer of power to Stuarts the destinies of its citizens. The first important facet  of the constitution which I want to emphasize that this is a document which marks the transfer of colonial power. The constitution  which put in place an organic structure that would sustain the countries independence and freedom  equipped with the tools for social revolution as noted historian Ranwil ostin called it. So parallel movement was taking place during the times of the freedom movement which we shouldn’t loose sight of .The parallel  movement together with the movement for  freedom was a movement for social emancipation,  the movement which was began by  people like Dr B r Ambedkar  but even before baba Saheb Ambedkar by the people like Phule this potential of a constitutional document in steering the course  of  the society it governs lends its paramountcy in comparison to statute law. A quote by Karsh smith comes to mind ,“the essence of the constitution he says is not contained in a statute or a norm but in a prior and fundamental political decision by the bearer of the constitution making power. In a democracy this is a decision by the people. “

A constitutional culture is Based on the understanding that a constitution unifies the population beyond those in once immediate fear of acquaintance and that whatever be our differences this is something we have in common. When the constitution was adopted there was a consciousness that in writing it's text India was finding a way to solve major substantive debates and disputes over norms and values in granting people power over their destiny the constitution plays the individual at it's it heart to guide the functioning of the democratic institutions which it has put in place . Our history of constitutional drafting is replete with anecdotes which illustrate that there was an attempt  by the framers to stake owner ownership over that document. Our framers did not placed the constitution for approval before the British parliament following the Irish precedent  Article 395 of constitution repeal the Indian independence act. The framers repudiated the source which authorize  to enact the constitution. This was a symbolic denial of Indian independence being a benevolence of an imperial parliament these actions of the frame work ensured that the chain of constitutional validity  did not extent to the power in the parliament. They delivered a completely autochthonous  constitution a home grown constitution rooted in our soil .The constitution or it's validity and authority to it's own people , rather than to the fact that it's enactment by a foreign legal process in way fashion we the people through the members of the constituent assembly came to be the source of authority of the constitution rather than the Indian independence act  enacted by the British government parliament. The advent of the indian constitution thus mark the coming together of population the culmination of desire for self governance is represented a bottom up approach where the people granted to themselves does structures of governance .In Nani Palkhivala's words " the constitution represents the charter of power granted by liberty and not the charter of liberty granted by power.Liberty is not a gift of the state to the people it is the people enjoying liberty as citizens of free republic who have granted power to the legislature and to the executive." The constitution was required to take into account multiple conflicts . Let us understand that this is a constitution which is founded in a history of multiple conflicts .Freedom of expression and national integrity ,personal liberty and political stability. Special treatment for some segments of society and equality for all . Proper E - rights and social  revolutionary needs.


The people who work the constitution may go terribly wrong and sometimes they do.As when we jail a cartoonist for sedition or when jail instead of  bail is given to a blogger who is critical of our religious architecture .When a mob lynches a person for the food she or he eats it is a constitution which is lynched. When we deny the human beings the power of love for reasons of religion or caste it is a constitution which is made to weep .

That is exactly what happened recently when a groom belonging to dalit community  was asked to climb down from a horse in a wedding procession .Let us not make two bonds about it there is the constitution which weeps when we read of such incidents.to the wisdom of our people the constitution trusts .The trust is broken at our peril the most fundamental struggle was between parliament and supreme court over custody of the constitution. The central issue being weather parliament's power of amendment was complete and unrestrained. In the initial decade of the nations independence  is  stronger central government with far reaching powers had assumed importance in order to drive socio political revolution. The birth of the nation was into what ranwil ostin has described an emergency.Two decisions immedieatly fueld a change in the constitution. The decision of the supreme court in Ramesh Thappar vs state of madras striking down the madras maintenance of the public order act 1949 and which Bhushan vs state of Delhi striking down the east Punjab public safety act immediately prompted the need to insert the word reasonable in Article 19 (1) 2 . As well as new grounds of public order friendly relations with foreign states and incitement to an offence inorder to allow the state to regulate free speech . One of the article into the constitution reflected the centers concern to centralize power through the constitution and enact property legislation.By  the first amendmend Article 31 A and 31 B were also added to the constitution which explicitly saved laws providing the acquisition of states from being void on the ground that they are inconsistent with fundamental rights.Acts and regulations specified in the 9th schedule would be immune from the operation of Article 13 .In keeping with the tense atmosphere in which India is born the operation of the preventive detention law brought into focus a jurisprudential position by the supreme court which was differential to the state .This is clearest in AK Gopalan vs State of madras were the majority held the Article 22 being a complete code relating to the preventive detention law the validity of an order of detention must be determined strictly according to the terms and within the four corners of the article 22 and that it's validity cannot be tested against article 19 and 21 in other words the fact that the fundamental rights were not a continuous stretch of entitlements but isolated pockets of discrete rights was the jurisprudence of the supreme court of that time. So the working of the constitution from the first decade of its existence in the context of a newly born nation looking to consolidate national unity was characterized by deference to the state agenda. but to the exigencies of time the constitution adapted or endured . A developing body of comparative constitutional studies starting the resilience of constitution has indicated .there are 3 features that exert an overwhelming bearing on their endurance the first is inclusiveness of the constitution .the second is its specificity and the third its flexibility . our constitution serves an outstanding example of durability in no small due to the normal power of the constitutional amendment granted to parliament in article 368. The power of amendment  is the foremost   expression of flexibility and has been exercised to reflect the match of time and the evolving  needs and values of the society .It indicates above all else the ability of the constitution to adapt to the changing circumstances .Since the enactment of constitution in 1950 article 368 has used extensively as of October 2018 . There have been more than hundred amendments to the constitution with amendments both frequent and wide ranging how ever the flexibility of our constitutions balance  the need to protect constitutions character the supreme law insolated from the vims of the government of the day. This was achieved by the virtue of basic structure doctored in Keshvananth and  jurisprudence of the supreme court   that followed which place limits on the plenary amending power of parliament thus safeguarding principles that form the bedrock of our constitutional order as a result the procedure for the amendment today is reflective of a finally struck balance it is neither to rigid not to flexible blending pragmatism adaptability with carefully designed safe guards Indian constitutional history has born witness to a number of landmark constitutional amendments what was formally the fundamental right to property enjoys the unique distinction of the being the most amended provision in our constitution protected as a fundamental right until the passage of the 44th amendment in 1978.The right to property there after deprived of it's fundamental status to reflect the growing realities of a conflict between the protection of existing property rights and the desire to move towards a more egalitarian society  which would involve the redistribution of land .The 61st constitutional amendment of 1989 passed recognition of political consciousness of the countries youth and the desire to integrate them into the political process .Deduce the voting age from 21 to 18 for elections to Loksabha and to state legislative assemblies .the 73rd and 74th amendments which brought through the insertion of part 9 a major boost to the protection and recognition of local self governing models in India by providing  a constitutional status to panchayaths namely the rural self government and Munsipallities Urban self governments .The 86th amendment of 2002 recognize the primacy of education for the nations youth and through the insertion of article 21 A made free and compulsory education between the ages of 6 and 14  a fundamental right and responsibility of the state . so we would miss the essence of the constitution if we do not remember to dwell upon the institutions reach the constitution is created democracy thrives when institutions thrives and democracies fail ,nation fail when institutions fail. So the resilient of our constitution lies not merely in placing the individual at the forefront of it's endeavors in terms of creating vibrant institutions and these are institutions which are really sustaining our democratic structure . The makers of our constitution were confronted with various tensions which ultimately shaped the character of the constitution. The constitution of India is a text that governs over 1.2 billion people in 29 states speaking 22 constitutionally recognized languages not to mention hundreds of dialects and practicing veritably every main stream religion in the world. Indian constitutionalism has been described as a boisterous and contentious enterprise that strives to endive the worlds largest diverse and complex democracy in the legal form .