The Constitution of India is the cornerstone of a liberated nation. Constitution
of India is the soul of our country India - the Union of States. It is supreme
lex of India. It is a symbol of Unity in Diversity. It is a treasure of national
heritage. It is the sacred gospel of our nation containing the aspirations of
We the People of India' and is aimed at strengthening the unity, integrity and
harmony of the nation. It lays the grand foundation of a great people's
political edifice of governance.
It projects the socio-economic vision of a
generation emerging from a feudal culture, colonial domination and federal
negation. It spells out the fundamental rights and socialistic aspirations of
the vast masses long inhibited by an imperialist ethos. It creates a trinity of
democratic instrumentalities with checks and balances, parliamentary in
structure, quasi-federal in character.
Endowed with adult franchise, empowered
with periodic elections, provided with plural Parties, equipped with a unitive
justice system with a uniquely Supreme Judicature at the Apex which gives access
to every citizen against injustice, the political structure of the
billion-strong Indian humanity is a paradigm of secular, socialist, democratic
An independent Judiciary, an accountable Parliament at the Centre and like
Legislatures at the State level, a powerful Election Commission and fearless,
critical Comptroller & Auditor General provide a paramountacy of democracy, at
once responsible and responsive. Judicial review of State action, public finance
auditable by a constitutional authority, obligation to seek fresh mandate
through general elections with adult franchise, accountability, direct and
indirect, to the people in several ways - these are fundamental in the
governance of the country.
The people, though free, have fundamental duties
mandated by Article 51-A of the Constitution of India to exercise which, as in
cases of environmental and ecological preservation, compassion for living
creatures, protection of the value of composite culture, the authority of
judicial writ power may be moved in aid. In the words of Dr. Ambedkar, winding
up his speech moving the passage of the Draft Constitution.
I feel that it (the Constitution) is workable, it is flexible and it is strong
to hold the country together both in peace time and in war time. Indeed, if I
may say so, if things go wrong under the new Constitution the reason will not be
that we had a bad Constitution. What we will have to say is, that Man was vile.
Stability does not mean immutability. Times change. Social conditions are
altered by various factors. Each generation may differ in values from a previous
generation. Therefore, realism dictates flexibility which implies amenability.
Therefore, Article 368 of the Constitution of India vests power in the
Parliament to amend the Constitution but with more rigorous procedures than in
passing ordinary legislation. Indeed, amendment of the Constitution, necessary
in certain circumstances, has been provided for, blending pragmatism with
special safeguards, avoiding rigidity, but facilitating flexibility. It must be
remembered that a mere majority cannot be allowed to tamper with the
Constitution. Why? There are certain great values, which our founding fathers
have regarded as paramount and inviolable.
If those values can be jettisoned by
a majority of Parliament a fanatical majority or absolutist party commanding
huge numbers in the House may destroy democracy, secularity, independence of the
Judiciary and the Rule of Law itself. All institutional safeguards and safety
valves may become ephemeral, unless basic values are put beyond Parliament's
power to truncate.
So it is that we have, as settled by constitutional law, re-enforced by [Keshavananda Bharti Vs State of Kerala,
AIR 1973 SC 1461], [Indira Nehru Gandhi Vs Raj Narain, AIR 1975 SC 2299];
[S. R. Bommai Vs Union
of India, AIR 1994 SC 1918] and other cases, the doctrine of basic structure of
the Constitution which is beyond mutation by the plenary power of the
Thus, the great fundamentals are immunised; at the same time
variable values can be given validity by appropriate amendments. What are the
basic features of the Constitution are outside the pale of amendment? The Rule
of Law, for instance is one; equality before the law and is another; secularism
is third; Judicial Review is fourth. Even federalism and supreme sovereignty are
India is a pluralist society with a large Hindu majority with subsidiary caste
minorities, and a number of religious minorities with separate identity. To
preserve our democracy and the confidence of the minorities, safeguards need to
be incorporated and wisely therefore, protection and reservation for minorities,
autonomy for religious communities and freedom for linguistic groups find a
heaven in the Constitution of India. Dr. Ambedkar, in the Constituent Assembly,
has defended the provision of reservation and other safeguards.
To die-hards who have developed a kind of fanaticism against minority
protection I would like to say.....one is that minorities are an explosive force
which, if it erupts can blow up the whole fabric of the State. Therefore, he argued for a tolerant
majority with respect for minority rights.
He quoted Grote, the historian of Greece:
The diffusion of constitutional morality, not merely among the majority of any
community but throughout the whole, is the indispensible condition of a
Government at once free and peaceable; since even any powerful and obstinate
minority may render the working of a free institution impracticable, without
being strong enough to conquer ascendency for themselves.
By constitutional morality Grote meant - a paramount reverence for the forms of
the constitution, enforcing obedience to authority acting under and within these
forms yet combined with the habit of open speech, of action, subject only to
definite legal control, and unrestrained censure of those very authorities as to
all their public acts combined too with a perfect confidence in the bosom of
every citizen amidst the bitterness of party contest that the forms of the
constitution will not be less scared in the eyes of his opponents than in his
own. (The Framing of India's Constitution Vol. IV Page 428).
A great safety value of Human Rights, constitutionally inscribed, is the power
of judicial review even to the extent of correcting and invalidating executive
and legislative excesses by binding writs. Articles 13, 32, 226, 136, 141 and
142 are some of the vital provisions which grant access to the people to move
the Court and seek redressal against injustice. Be you ever so high, the law is
This proposition must be read with the power of the independent
judiciary., viz, the law is what the Judges say it is. Since judicial review is
basic feature of Constitution of India, the citizen has inalienable power to
defend himself/herself. Of course, what are basic features depends on the
pronouncements of the Judiciary in their wisdom. Judicial independence is itself
a basic feature of the Constitution.
Judiciary and National Interest
The Constitution of India has created a Democratic Republic and a trinity of
instrumentalities to enforce its paramount provisions without fear or favour,
affection or ill-will. The Executive echelons, when they exceed their power as
inscribed and circumscribed in the Supreme LEX, are subject to scan, scrutiny
and correction by the higher Judiciary.
The Legislature has vast law-making
powers and is functionally competent to perform an inquest into the
Administration. But when it transgresses its constitutional bounds the Court can
quash its action by writs or command fresh operation by appropriate directions.
However, Judges, vested with considerable power, are oath-bound by the
Constitution of India to decide within its prescriptions and proscriptions of
Law, without violating jural parameters and performing with exemplary good
Judicial bounds of dignity and propriety are real and noble. Judicial
integrity and judicial independence are Constitution avowed mandate. Judicial
pronouncements reflect society's changing outlook, but, of course, within the
permissible limits of constitutional compatibility. For Justices of the Higher
Judiciary national interests is paramount, and promote, on occasions, national
interest through judicial process. It opined though a judgment cannot be a
solution to all the problems, but for governmental lawlessness Judiciary is the
only repository of the confidence of the We The People Of India.
of India's expounding philosophy related to judicial process seems to be the
philosophy of the seamless web of Judgeship and Judge that has diamond-hard
parameters, which are symptomatic of functional excellence. This is the 'basic
feature' of the judicial process, which works on faith, confidence and
acceptability of the We The People Of India by developing the inner strength of
morality and ethics in those who work with it. In the backdrop of the above, a
modest attempt is made to analyze the genesis, philosophy and contours of
experimental-transformative jurisprudence ingrained in its judgments which
contribute to the systematic, methodological, and scientific, and scientific
evolution of expounding the Constitution of India with multifaceted dimensions, viz,
- What is that expounds the Constitution?
- What rules of interpretation are followed in expounding the Constitution
What are those evinced principles of Constitutional Law of India, which are
immutable evolving expounding the Constitution?
- What are those principles, which evolve The Conceptual framework
of Fundamental Rights, Directive Principles of State Policy and Fundamental
Duties; Jural Postulates of Correlatives and Opposites?
In our democratic system, the strongest safety valve to protect our freedom is
the exercise of adult franchise, whereby, every person, above age of eighteen
years has the right to cast his/her vote at the General Election held
obligatorily by an independent Election Commission. This power of the people is
the ultimate sanction to control the Executive and the Legislature.
In Churchill's famous words:
At the bottom of all tributes to democracy is the little man, walking into a
little booth, with a little pencil, making a little cross on a little bit of
paper - no amount of rhetoric discussion can possibly diminish the overwhelming
importance of the point.
In the Cabinet System, the Council of Ministers must command a majority in the
House. This sanction is a protection against authoritarian regime. The historic
Indira Gandhi's debacle, after the Emergency span, demonstrates how effective
elections are as a safety valve.
Freedom of Speech
Human freedom is the life blood of personality of a person which is contributory
to the enhancement of the growth of a nation and its foundational values for the
growth of the democracy. The founding authors of the Constitution of India were
conscientious of the inherent value of freedom and, therefore, recognized the
gravity of right to freedom because of the reminiscing on the callousness of
foreign governments suppressing the freedoms of the Indians. Freedom is
imperative for the welfare of society. With time these constitutional guaranteed
freedoms have evolved and have become the heart and conscience of the
Constitution of India.
The Supreme Court in [Keshavananda Bharti Vs State of
Kerala, AIR 1973 SC 1461] expounded the constitutional freedoms and fundamental
rights to be the foundational values of Basic Structure of the Constitution of
India and the Parliament of India was held powerless to destroy these
constitutional foundational values. Constitutional freedoms and the basic
fundamental rights are indeed essential for the progressive growth, advancement
of an individual and the Indian nation. Right to freedom together with justice,
equality and liberty is the cornerstone of Indian nation.
Article 19 of the Constitution of India originally encapsulated seven freedoms
which were called as the rainbow of Freedoms. Freedom of property was deleted by
44th Constitutional Amendment. Six freedoms under Article 19 of Constitution of
India continue to be the rainbow of freedoms even after the eclipse of freedom
of property, because right to property continues to be a constitutional right
vide 44th Constitutional Amendment i. e Article 300A of Constitution of India.
Article 19 (1) (a) of Constitution of India guarantees to every citizen freedom
of speech and expression which includes the freedom of the Press and Media -
Print, Electronic and Social Media - Right to Know or Right to Information.
Freedom of expression, which covers freedom of the media, is a constitutional
guarantee which properly exercised, will empower, as the Fourth Estate. the
political opposition in the country and make Part III of the Constitution of
India (Fundamental Rights) a living reality. Parties play a vital role in the
operation of the democratic order. Even if a plurality of parties form
Coalitions or Fronts they are answerable to the House and the House itself.,
functionally powerful, is a sentinel of people's liberty and an incorruptible
responsive and responsible Government. The pity is that our legislatures are not
functioning meaningfully and are lost in 'sound and fury signifying nothing.'
Directive Principles Of State Policy and Fundamental Duties
Directive Principles of State Policy enjoined in Articles 36-51 of Constitution
of India are in the nature of 'Social Policy', They are in the form of policy
directions to the State to move for the overall welfare of the people. They are
aimed to achieve the goals of 'Welfare State' based on the utilitarianism and
social engineering principles of the maximum happiness or interests of the
maximum number of people with least friction.
They cast a duty on the State to
apply these principles in making laws. It is the duty of the State to formulate
its social policies in such a way that social and economic justice is translated
realistically and factually and the people of India nourish a feeling of having
access to justice. They cast obligations on the State to promote social and
economic rights of the people of India.
Though they are not enforceable or
non-justiciable in Court of Law., but, nevertheless, they are fundamental in the
governance of the country. The authors of the Constitution of India aspired and
cherished that the State shall strive to achieve these objectives of Welfare
State through the guidelines prescribed in the Directive Principles of State
The genesis of Directive Principles of State Policy was explained in the Sapru
Committee Report, 1945 as follows:
We have come to the conclusion that in addition to these fundamental rights, the
Constitution should include certain directives of State Policy which, though not
cognizable in any Court of Law, should be regarded as fundamental in the
governance of the country.
Be that it may, it is said that the inspiration to incorporate non justiciable
Directives of State Policy in the Constitution of India was the Irish
Constitution which reads as under;
The principles of social policy set forth in this Article (Article 45 of the
Irish Constitution) are intended for the general guidance of the Oireachtas. The
application of those principles in the making of the laws shall be the care of
the Oireachtas exclusively, and shall not be cognizable by any Court under any
of the provisions of this Constitution.
As these directives were pious obligation?
In the words of Dr. B. R. Ambedkar the nature and ambit of these directives
of State Policy are:
In enacting this Part of the Constitution, the Assembly is giving certain
directions to the future legislature and future executive to show in what manner
they are to exercise the legislature and executive power they will have. Surely
it is not the intention to introduce in this Part these principles as mere pious
It seems that these Directives of State Policy are not mere pious obligation,
but they are to be translated in law to achieve the ends of justice, namely,
social justice, economic justice, political justice, distributive justice and
access to justice; they are in the good governance of the country; they show the
path of working with the Constitution; they are directives in the furtherance of
economic democracy to fulfil the cherished and avowed principles of social as
well as political democracy. Social and political empowerment is only possible
if there is economic empowerment of the people of India.
Fundamental duties being basic human rights of all citizens encapsulate the
fundamental obligations of the State to its citizens. Fundamental duties are the
duties/obligations of the citizens to the State. These constitutional duties are
moral obligations of all the citizens of India to help to promote a spirit of
common brotherhood, patriotism and to uphold the unity and integrity of India.
The Directives Principles of State Policy are moral obligations of the State in
framing and passing laws based on policy perspectives or fundamental guidelines
for good governance promoting fraternity, unity and integrity of India and human
The conceptual framework of jural postulates has been a proprio vigore
highlighted in [I. R. Coelho Vs State of Tamil Naidu, AIR 1999 SC 3179]. The
Supreme Court emphasized that to destroy the guarantees given by Part III in
order to purportedly achieve the goals of Part IV is plainly to subvert the
Constitution by destroying its Basic Structure. Fundamental Rights occupy a
unique place in the lives of civilized societies and have been described as
'transcendental', 'inalienable' and primordial. They constitute the arc of
Constitution of India.
The goals set out in Part IV of Constitution of India
have, therefore, to be achieved without the abrogation of the means provided for
by Part III of Constitution of India. Anything that destroys the balance
between the two parts will ispo facto destroy the essential element of the Basic
Structure of the Constitution of India.
The Constitution of India is a social document and economic instrument.
Secularism is a guarantee and socialism is an imperative of our Republic. In
this context, Part IV and IV-A of Constitution of India deal with Directive
Principles fundamental in governance of the country as well as the provisions
regarding the Fundamental Duties, if taken seriously, will ensure life, liberty
and the pursuit of happiness of every Indian's basic birthright.
The salvation of Swaraj - every Indian human's Right to Dignity, development and
democratic voice - depends on the creative, sensitive, sarvodaya spirit of our
It is well to remember the oft repeated passage from the last speech of Dr. B.
R. Ambedkar in the Constituent Assembly on November 25, 1949 to the following
I feel, however, good a Constitution may be, it is sure to turn out bad because
those who are called to work it, happen to be a bad lot. However bad a
Constitution may be, it may turn out to be good if those who are called to work
it, happen to be a good lot. The working of the Constitution does not depend
wholly upon the nature of the Constitution.
Dr. B. R. Ambedkar further added;
The Constitution can provide only the organs of State such as the legislature,
the executive and the judiciary. The factors on which the working of those
organs of State depends are people and the political parties they will set up as
their instruments to carry out their wishes and their politics. Who can say how
the people of India and their parties will behave? Will they uphold
constitutional methods of achieving their purposes.....
The ultimate safety valve of our Republic rests, vests, in the last analysis, in
the practical wisdom, social active and collective comity of We the People of
Constitution of India is neither a seasonal document nor an experiment, but is a
permanent textual document and expounded that binds the posterity for ages to
What will matter are not your memories, but the memories that live in those
who loved you. What will matter is how long you will be remembered, by whom and
Justice and Expounding Philosophy Nature
YATO DHARMA STATO JAYA.
This is the Emblem Of Justice Of The Apex Court Of India and corpus juris of
Vidhi (law), Nayaya (Justice) and Yukti (Natural Reason, Logic and Equity),
Vidya (Knowledge) sits supreme that binds human beings and all manifestations of
Law, Life and Literature (LLL). Ii is entrenched as the principle of expounding
the Constitution that binds the posterity or future or future generations for
ages to come.
Expounding principle signifies that our Constitution text is not a seasonal
document; it is a permanent document; it is not static like dead wood; it is
dynamic and a living organism since it seems to have acquired legitimacy as a
highest norm of public law, The reading of the deliberations of the Founders of
the Constitution recorded in the Constituent Assembly suggests that it is
impossible as well as impracticable to suggest that they intended the
Constitution itself to suggest answers to the manifold problems that they would
confront succeeding generations.
Dinesh Singh Chauhan, Advocate -
J&K High Court of Judicature, Jammu.