In the early winters of 1948 when the draft constitution was made open for public comments and some constituent assembly members like B. Pattabhi Sitaramyya wanted to put ‘unity of nation’ before ‘dignity of Individual’, B. N Rau who was advisor and engineer to the draft rejected the proposal by emphasizing “the reason to for putting the dignity of individual first was unless the dignity of an individual is assured, the nation cannot be united”[1] and thus reinforcing that Individual is at the heart of the constitution.
Constitution thus is not only a document which marked
end of British dominion status and birth of constitutional democracy in India
but also provided Indians with a tool to enforce their individual liberty and
rights.
India unlike Malaysia or Singapore brought the indigenous element of novelty by
enacting its own ‘constituent assembly’ and wrote the constitution at its own terms.
It is reflected when Nehru laid down the object and resolutions in the assembly
and emphasized how people of India are at the core of the constitution-making
process. He said, “…But you must not
ignore the source from which this Assembly derives its strength. Governments do
not come into being by State Papers. Governments are, in fact, the expression of
the will of the people. We have met here today because of the strength of the people
behind us and we shall go as far as the people not of any party or group but
the people as a whole--shall wish us to go. We should, therefore, always keep
in mind the passions that lie in the hearts of the masses of the Indian people
and try to fulfill them.”[2]
Constitution
therefore is a document which marked swift ‘transfer of power’ from them to us
but it is not only a document for governance or governments but also it
directly affects the rights of individuals. Many have accused constitution as an
elitist document or as a “lawyers paradise”[3]
but contrarily it has enabled its people equality, liberty, and fraternity
amongst many other constitutional rights in a democracy making constitution a
people’s document and people have played a central role in its organic
development. It is pertinent
here to note that today, when we celebrate 71 years of its adoption its the importance is quintessential or rather, even more, today when the spirit of the constitution,
constitutional statesmanship and individual rights are apprehensive of being
compromised while liberty in numerous instances are increasingly curtailed
contrary to reasonable but emancipatory reading of rights in the Constitution witnessing
a slippery constitutional adjudication of right.
Constitution of India is an ambitious project[4]
and as said by Dr. B R Ambedkar it is “Vehicle
of life” for individuals, which has been ever-growing like branches of a
tree to feed its citizen with changing times but yet its roots remain intact to
further liberty, equality, and fraternity. It is a consciously engineered document
which has seen wear and tears of governments, horrors of emergency,
ideological changes and yet when many constitutions like of Pakistan (framed
almost in same era) succumbed to majoritarianism, India held
it's head and nose high and One of the reasons which is to be attributed is
India’s commitment to its constitutional mandates set by its forefathers, its
flexibility in amending it as and when time calls for, its beautiful cosmology
of checks-and balance through Judicial review and constitutionalism,
collectively preserving the spirit of the country. The document is a permanent source
of constitutional governance but in no way has attained permanence which is
visible in Pandit Nehru’s speech when he said “….While we want this constitution to be as solid and as permanent a
structure as we can make it, nevertheless there is no permanence in Constitution.”[5]
It is on this premise that it can be said that the
constitution of India is not conservative and limited to surface or textual
reading of constitution but is transformative[6]
and entails a larger picture of constant development of rights which were
originally not covered but evolved via judiciary which was enabled by the
living tree[7]
called Constitution. This transformative reading is mandated by the idea of
written constitution which again ensures the wellbeing of the individual and
ensuring the maximum exercise of right to the individual. However this emancipatory
reading of rights has also seen a gradual shift in different phases of
interpretation of the constitution from mere textual reading to exploring
beyond text and looking for intent or purpose.[8] It
has evolved from a restrictive reading of ‘Procedure established by law’ in A. K Gopalan[9] to
evolving a basic structure doctrine
limiting the power of parliament to abridge Individual right in Keswananda Bharti[10] and then expansive reading and overruling
Gopalan in Maneka Gandhi[11]
and central argument in all of it has been the maximum extension of rights to an individual against state.
Interestingly in each of these cases it was an
individual who was at core but to their credit this struggle led to the
significant constitutional developments which formed the basis of rights
jurisprudence in India and the credit can even be extended to Individuals like
MC Mehta, J K S Puttuswamy, Navtej Johar etc to name few. As Rohit Dey argues, “From
the earliest days of India’s independence, citizen’s political action has
influenced the court and reveals a long history of public interest litigation
driven by litigants rather than judges”[12]
It is therefore a myth worth bursting that the cosmology of constitution is
only for a certain class or that it is a guide on governance because
constitution affects every last individual of the country and it is those
individuals who have played a significant role in development of constitutional
principles . Constitution without its people is nothing but a mere letter and
the organic character and dynamism of the constitution is due to its individuals.
Individuals too have used constitution as a tool to secure rights in everyday
chores and contributing in development of ideas of new rights. The spirit of a
living constitution is in Individual upliftment as constitution works for all
and to summarise in words of Justice D Y Chandrachud, “The Constitution works for even those who don’t believe in it”[13].
It is true , we did not imagine the horizons of rights
extended to the individual when we enacted, adopted and gave ourselves this
constitution on 26th day of November of 1949 but due to its living,
organic and transformative nature at one hand and Judicial evolution of right
based doctrines by purposive interpretation at other, we have seen the essence of
constitution being realised and rights being extended to individuals. It is due
to this document that today every citizen of the country is assured of their liberty,
their choices and even though there are instances not warranted if it was not
for the constitution, what would have been the fate of individual against
state?
[1] III, Constituent Assembly Debates, 4.
[2] I, Constituent Assembly Debates, 1.
[3] Ivor
Jennings described the Constitution of India as “lawyers’ Paradise”
[4] Arun K Thiruvengadam, The Constitution of India: A contextual
Analysis, HART PUBLISHING OXFORD AND PORTLAND 2017.
[5] VII, Constituent Assembly Debates, 322-23.
[6] Gautam Bhatia, The Transformative Constitution: A Radical
Biography in Nine Acts, HarperCollins Publishers India 2019
[7] Thulasi K Raj, Ways to read the Constitution, The Hindu https://www.thehindu.com/opinion/op-ed/ways-to-read-the-constitution/article24794977.ece
[8] Chintan Chandrachud, The four
phases of constitutional interpretation, The
Hindu https://www.thehindu.com/opinion/lead/the-four-phases-of-constitutional-interpretation/article30653706.ece
[9] A.K Goapalan v. State of Madras AIR 1950 SC 27.
[10] Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461.
[11] Maneka Gandhi v. Union of India 1978 AIR 597.
[12] Rohit
De, A People’s Constitution, Princeton University Press 2018.
[13] Video Lecture by Justice D Y
Chandrachud on Why Constitution Matters at Bombay Bar Association , available at
https://www.youtube.com/watch?v=vr1Dc_-ZKbQ
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