Pandit Jawaharlal Nehru used to keep Robert Frost’s famous lines on his bedside: “The wood are lovely, dark and deep, But I have promises to keep, and miles to go before I sleep”, to remind him of the humungous challenge that lie ahead of us in free India. As India wakes up on its 70th year of freedom, it would be worthwhile to take stock of cataclysmic changes that have overtaken us and that lie ahead in our constitutional architecture. The most fundamental change being that inclusion of Right to Education as a Fundamental Right. Panchayat Raj has become the third tier of democracy, to fulfil the Gandhian dream that “India lives in its village”. Affirmation of Secularism in the Preamble, is an assurance to all religious communities that India is not a theocratic state. Right to Property as a Fundamental Right has been removed. Goods and Services Tax has irreversibly bolstered cooperative federalism. Primary education, promise of a secular culture, grass root democracy and “one nation one tax” thus makes India a robust federation! Yet India at 70, has many discordant issues that trouble its underbelly.
The first and foremost is the controversy on prohibition of cow slaughter under Article 48. The minority communities strongly believe that this would be a serious infringement on their freedom of trade and commerce as guaranteed under Article 19(1)(g). Undue vigilantism on dietary and trading habits of poor Indians is also seriously queering the pitch. The Supreme Court in Akhil Bharat Goseva Sangh vs State of Andhra Pradesh (2006) held that Article 48 does not require the state to impose a total ban on cow slaughter. This should hold a good template to emulate and be respected by all the communities; without religious sentiment getting the better of multi culturalism.
The other area of debate is whether the individual rights and socio economic justice are two wheels of a chariot as Chief Justice Chandrachud would like us to believe. Or as Justice Krishna Iyer would put it: “Social justice is gibberish when inhuman poverty is wide spread and accumulated inequality is wearing the armour of wealth”. The debate is essentially whether India has finally opted for a free market economy or we still have illusions of a socialist economy! With dismantling of the Planning Commission and the proposed privatization of Air India, the dye has been cast on socialist pretensions; though it still emblazons our preamble.
Uniform Civil Code for all religious faith is one of NDA’s election agenda and an extremely divisive as an issue. It is indeed a pity that the judgement in Shah Bano Case (1985) which gave primacy to CrPC over Muslim personal law was set aside in 1986, because of political opportunism. There can no debate that the rights of maintenance of a Muslim woman, who have been deserted by her husband, cannot be viewed with a different political prism that that of similarly placed Hindu woman, just because of antiquated religious dictat of Muslim Personal Law. The basic canon of rule of law should govern every community.
The most contentious issue, however, has been the lack of balance between different organs of the government. In the Fourth Judges Case (2015) the Supreme Court struck down the 99th Constitution Amendment which approved constitution of National Judicial Appointment Committee to appoint judges to the High Court and Supreme Court in place of the present collegium system. One senses that the court has tried to protect its own turf by giving a go by to the concept of checks and balances in a democracy. Chief justice M. Patanjali Sastri had famously observed (1951): “No lilting at the legislative authority in crusader spirit but discharging a duty plainly laid on them by the Constitution”. However, the court has since then being taking a full tilt at the legislature by reminding them about their dereliction in legislative duty. A case in point is the Vishakha Judgement (1997) where it proposed guidelines to prevent sexual harassment for women in workplace. Article 50 of the Constitution clearly enjoins upon separation of the Judiciary from the Executive. However as the eminent jurist Fali Nariman brings out in his latest book “India’s Legal System: Can it be Saved”: “The Judiciary is like oxygen in the air. It is not enough for the judiciary to be, independent of the executive. They must be seen to have noble quality of mind and heart and above all courage”. This is indeed a sobering thought for both the executive and the judiciary.
The latest controversy to hog the limelight is a case pending with the Supreme Court on the validity of Article 35(A) which provides that only Kashmiris born on a particular day of the week or of a particular religion can be permanent residents. This has the implication that a non J&K resident husband and their children married to a Kashmiri lady will not be entitled to the special privileges available to the mother. It may be recalled that Article 370 was added on the last working day of the Constitution, giving special status to J&K without specifying the date of expiry. Curiously Dr. B.R. Ambedkar did not attend the Assembly on that day. What is in challenge before Supreme Court is restriction on the rights of other citizens other than Kashmiris and such provision being able to stand the test of not destroying the basic structure of the Constitution. The concerns like social justice for all, dietary freedom, balance in power in different organs of the government and discrimination of Indian citizens in Kashmir, makes our odyssey in democracy, both troubling and humbling.
The author teaches Constitutional law