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The Constitution : A Living Character

Prof. (Dr.) Balram K. Gupta
12 Dec 2019 2:41 AM GMT
The Constitution : A Living Character
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Constitution Day was celebrated on Nov.26 throughout the country. The Constitution of India was adopted on Nov. 26, 1949. It has completed 70 years of its journey. My romance with the Indian Constitution started in 1964. The Constitution was still in its teens (14 years). I was twenty. We have grown together. We are maturing together. What a wonderful journey.

The Constitution has undergone different changes. It is not the same what it was in 1949. During this period, 103 corrective surgeries have been performed. The Basic Structure has remained the same. It has grown to keep pace with the changing times. This has been possible because of the role of the top court. If the balance sheet is prepared, it would clearly demonstrate that the summit court has been able to connect the people with the Constitution. The tool of Public Interest Litigation (PIL) created through judicial interpretation has been the most potent medium to connect the people with the Constitution.

The coparcenary of Fundamental Rights, Directive Principles and Fundamental Duties : FRs, DPs and FDs connects the people with the State. The State is under the Constitutional mandate that FRs are not to be violated. Equally, the State is to endeavor to govern in the manner that the DPs are translated-in-action. The people are also under the Constitutional obligation to follow FDs. In actual functioning, each one must follow the discipline of the Constitution. The Constitution Day is observed to remind one and all that the Constitution is binding on all. The Constitution is the Dharma. It is the holy book. If it is followed, the Right to Good Governance would become a practical reality, not merely a formality. People talk of FRs. It is understandable. Let people also not forget or ignore FDs. They go hand in hand. If the people do not follow FDs, they would have no legitimate claim to FRs. Like FRs and DPs have been harmonized, similarly FRs and FDs are to be co-related. If a citizen acts contrary to a FD, he / she would have no legitimacy to claim FR. In any case, the violation of FD, must be read as a limitation on the enforcement of FR. Jurisprudentially, one cannot be divorced from the other. Both are inter-woven. Moreover, Rights and Duties are fundamental. Principles are directives. Yet, the Constitution ordains in Art. 37 that the Principles are 'fundamental in the governance of the country'. If DPs could be harmonized with FRs, why FDs cannot be read or treated as reasonable limitations on FRs. This trinity is the best recipe of the Constitution. They must be read together. Ultimately, it would lead to wholesome justice.

The Constitution is a living character. Judicial Review helps to keep the Constitution in shape. Judicial review does not let the Constitution grow old. No ageing of the Constitution. The Parliament can repair the Constitution. In the process, it cannot injure, damage or destroy its Basics. Kidney transplant is a good example. Kidney is one of the basic organs of human body. It cannot be replaced just with 'any' other kidney. 'Matching' process is vital. To be followed with utmost care and caution. Otherwise, the human body would reject the same. Similarly, while amending the Constitution, the 'Basics' cannot be replaced or supplanted by new provisions. The change must not tinker the Basic structure. 'Matching' must be perfect. In the sense, it must not dilute the 'Basic'. It may only identify and clarify the gray spots. Nothing must be left to doubt. 'Basic' must speak for itself. No new provision can be introduced which may change the 'Basic' provision itself. It is corrective surgery. So that the 'health' of the Basic structure is maintained and retained. The aging process may not affect the 'Basics' of the Constitution.

There are hidden constitutional values. The bare reading of the provision may not speak of the hidden constitutional value. Art.14 speaks of equality before law and the equal protection of laws. Equals to be treated equally. Reasonable classification is of course permissible. Judicial Review has helped in firmly laying down that any action which is arbitrary is also discriminatory. This, in fact, is the hidden value of the Constitution. Art. 21 is a piece of beauty and joy forever. Many rights flow from it. Right to live with dignity. Right to die with dignity. Even the right to a living will has been recognized. I recall my student days. I went for a debate at Banaras Hindu University, Varanasi. What I saw, was an appalling situation. A dead body was being carried on the carrier of a bicycle. On both sides, the body was hanging down. It was touching site. Now I realise, what this right to die with dignity means.

During my reasonably long journey, I have often wondered, why judicial review has played such a significant role in a parliamentary democracy. I ask myself, why judicial activism! Why not parliamentary activism! Why the Institution of Lokpal or Ombudsman took so long ! Its gestation period was almost close to 60 years. Ultimately, judicial push had to be given to it. I had wished it to be a constitutional body. Only a dream! By parliamentary activism, I mean, strengthening rule of law through legislative process. Enact laws to curb arbitrariness. To eliminate abuse of power. To strengthen constitutional values. Its morality. We all are under the Constitution. The constitutional bodies must function as independent bodies. To serve the constitutional object and purpose. My message on this Constitution Day is : Let the Parliament, the Executive and the Judiciary play active and positive role to strengthen the constitution. To translate the constitution-into-action. This would help in balancing judicial activism. The three organs are bound by the constitution. The people are also to follow the constitution. Therefore, let us pledge ourselves to follow the constitution.

Prof. (Dr.) Balram K. Gupta is Sr. Advocate, and Director (Academics) at Chandigarh Judicial Academy.

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