Sixty years is a long time in the life of a Constitution; to savor its high points & fault lines. This was the day when the members of the Constituent assembly dedicated, the holy law book of India, was dedicated to the people of India; to achieve socio-economic justice and ensure right to freedom, equality & life. The ink from the Tryst with Destiny speech of Nehru (1947) had hardly dried when its protagonists fought bitterly; whether to introduce Uniform Civil Code for all the religious communities. There was also no unanimity if Secularism should be part of the Preamble. While Nehru was keen to ink Socialism as the ideology to achieve socio economic justice, based on his fascination of Soviet Planning, the free market spirit of Patel prevailed. And Right to property became a fundamental right as in capitalist countries like the USA.
Abolition of zamindari became first port of call for the Parliament and the spat between the Parliament & the Supreme Court became the major area of discord. In the Golaknath Case (1967), the Court checkmated the right of the Parliament to tinker with the fundamental rights. The same court, six years later acquiesced into Parliament’s right to amend fundamental rights, allowed nationalization of banks and coalmines, with the ostensible objective to sub serve common good. This also provided the ideological ballast to incorporate Socialism as part of Constitution’s preamble. The right to property was removed as a fundamental right in 1977.
The court, however, brought in the basic structure doctrine which cannot be flirted with by the Parliament. Secularism, Federalism, independence of judiciary have emerged as the inviolable mascots of the Constitution. Thirty three years down the line, the Keshavanand Bharati judgement (1973), has made the Constitution & not the Parliament supreme. It has also anointed itself as the sole custodian and interpreter of any intrusive amendments of the Constitution. This has extended to selecting judges for itself; any Presidential interference; a practice which has no precedent in any other country.
Such activism of the court has to be understood in the backdrop of court’s uneasy relationship with the autocratic regime of Mrs. Gandhi when she superseded judges because they did not toe her line as committed judges and imposed national emergency in 1975.
India’s Constitution today is now more about Constitutionalism, i.e. how the Supreme Court interprets legislative and executive action rather than how the Parliament carries the will of the people through unfettered legislation. The attempt of the NDA government to hark back to the old preamble, which did not include socialism & secularism, is unlikely to succeed; because the basic structure doctrine is likely to turn it down.
However there is one terrain where the court has left the baton in the hands of the Parliament; one such area is to bring in the Uniform Civil Code early. In the Shah Bano Case 1985, the court was emphatic about Muslim women’s’ right to inheritance to be par with women of other communities, CrPC was considered to be superior to the shariat law. Its subsequent judgments are far more guarded and at times squeamish. This is possibly because of the likely backlash from the orthodox Muslims & pusillanimity by that Rajiv Gandhi Government; undoing the Shah Bano Judgement.
The hangover of Muslim sensitivity, invocation of minority appeasement & call for strident Hindu revivalism has not helped sane debating of this sensitive issue. The fault lines of partition still looms large on the inheritance rights of deserted Muslim women. Abrogation of Article 370, which has accorded special status to the state of J&K, is other festering wound. As we rejoice in freedom of expression on the 67th birth anniversary of the longest Constitution of the world, democracy is about sober debating and respecting responsible dissent. It can’t be waylaid by the tyranny of political majority.
Prof SN Misra teaches Constiutional Law