Safeguarding Constitutional Values:
Lessons of Emergency
Dr. Rup Narayan Das
The Government of India declared November 26th as Constitution Day or Samvidhan Divas on November 19, 2015 by a gazette notification to commemorate the adoption of the Constitution on November 26, 1949 which came into effect from January 26, 1950. While greeting the people of India on the first constitution day, Prime Ministry Shri Narendra Modi said, “Let us always uphold the ideas and values of our Constitution and create and India that would make our founding fathers vary proud”. The basic objective behind the observance of Constitution Day is to create awareness about the constitution and how best citizens can avail constitutional remedy when their rights including fundamental rights are violated or infringed.
The observance of the Constitution Day reminds us of the dark days of Emergency which was imposed on June 25, 1975. For about two years till the Emergency was repealed in March 1977, values of the Constitution were trampled, Parliament remained under suspension, the independence of judiciary was tampered, media was muzzled and citizens suffered.
It was for the first time in the history of India when freedom and rights guaranteed under the constitutions were infringed. Fundamental Rights which are regarded as 'the conscience of the Constitution' under Articles 14, 19, 21 and 22 were suspended. Article 14 provides that the state shall not deny any person equality before law or equal protection of the laws within the territory of India. What was unfortunate was the suspension of Article 19 which provides among others freedom of speech and expression, to assemble peacefully and without arms, to move throughout the territory of India. Equally painful was the suspension of Article 21 which lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law, and the suspension of Article 22 which provided protection against arrest and detention. The press was muzzled and eminent editors were harassed. The draconian Maintenance of Internal Security Act (MISA) was clamped, political leaders were arrested across the country, academic freedom were taken away, cortical magazines were forced to close down, and there were police brutalities and accesses. Parliament was dissolved and an atmosphere of fear permeated.
But the flame of the spirit of the Constitution could not be extinguished. Like a moth driven to the lamp of fire, freedom loving people were stirred by the clarion call under the leadership of the late Jayaprakash Narayan who had earlier started the 'total revolution' or Sampurnakranti'. Popular resentment arose through the length and breadth of the country. It was like a second freedom struggle to rid the country from the shackles of dictatorship and tyranny. The whole nation was mobilised to protest against the excesses committed by the state machinery. The message was loud and clear to the political class and ultimately the Constitution and democracy triumphed.
It is against this backdrop that the Constitution and the values that it espouses, occupy their salience in our national life. Arguably Indian Constitution can be regarded as the best constitution of the world, which is described by Granvile Austin as the 'Cornerstone of the Nation'. The constitution on the one hand guaranteed the fundamental rights of the citizens, on the other it has also entrusted the responsibility of the state to ensure the wellbeing of the citizens through various welfare measures. It has also created institutions like judiciary, the Election Commission of India and C&AG for facilitating good governance and wellbeing of the people.
Our Constitution is the embodiment of the wisdom and sagacity of luminaries who framed it after deliberation and diligence. It is like a set of guidelines to the stakeholders, the legislatures, the executive, the judiciary and institutions that it has created. The Constitution is like a text and its working has to be understood and assessed in a political context. The Constitution has created structures and institutions and the spirit of the Constitution operates through these institutions. Each organ and institution has to work in harmony to uphold the spirit of the constitution. The Constitution, a unique document, is not a mere pedantic legal text; it embodies human values and spiritual norms. It upholds the dignity of man. The Preamble to the Constitution pronounces the ideals and objectives of the constitution. The supremacy of the Constitution is yet another hall mark of the Constitution.
It is instructive to see how different organs of the state, viz, the executive, the legislatures, and the judiciary over the years have worked in harmony to uphold the objectives and the ideals of the constitutions. The judiciary is there to ensure that the law is not ultra-virus, that it is repugnant or violate of the provisions of the constitution or the spirit of the constitution.
Although the Indian Constitution is claimed to be the longest written Constitution, still there are grey areas. No wonder therefore, the Constitution itself provides for its amendments and we call it a flexible and dynamic Constitution. As Bhimrao Ambedkar, the architect of the Constitution said that the flexibility of the constitution is its distinctive feature. It is a living document responsive to societal and political needs of the time. The detailed and precise amendment procedure is the source of its strength. Flexibility of the Constitution doesn't mean that it can be amended beyond recognition. The Basic Structure of the Constitution like the federal structure and the Parliamentary polity can not be amended. While some provisions of the Constitution can be amended through simple majority, there are provisions which can only be amended by 2/3rd majority; and there are provisions which require ratification by one half of the states signifying the federal nature of the polity. What are the amendments that require ratification by the States? They are article 368 itself, the article dealing with the President, the extent of the executive power of the Union and the state government, the judiciary, the distribution of power and representation of states in Parliament.
The amendment procedure also reflects the federal character of our Parliamentary polity in the sense that some amendments are required to be ratified by more than half of the states. The amendment provisions of the Constitution have enabled the government of the day to face and mitigate emergent issues and challenges and bring about legislation to cope with them. Legislative measures sometimes have a bearing on the Constitutional provisions. There are many such examples. It is not possible to deal with them exhaustively. Some examples will drive home the point. When the government recently passed the Women's Reservation Bill, the Bill inter alia proposed to insert a new article relating to reservation of seats to Women in Lok Sabha and state Assemblies through article 330A, 332A and 334A. Earlier the Constitution was amended through 73rd and 74th amendments to provide for women's reservations in Gram Panchayats and Nagar Palikas. The government also passed three important laws amending the colonial and archaic laws which reflect the dynamic nature of the Constitution. The first is the Bharatiya Nyaya Sanhita Bill which amended the Indian Penal Code relating to criminal offences. The second is the Bharatiya Sakshya Adhiniyam replacing the Indian Evidence Act, providing for electronic as digital records as evidence. The third is Bharatiya Nagarik Suraksha Sanhita amending the Criminal Procedure Code.
A constitution is like dead letters without courts to interpret them. No wonder it is said that the Indian Constitution is judges' paradise. In fact the consequential values of the Constitution are reflected in the judicial and legal processes and in the judicial pronouncements and also in the rulings given by the Presiding officers. The Rulings by the Presiding Officers of the two Houses of Parliament are interpretations of the Constitution and they also reflect the spirit of the Constitution.
India has not only survived against all odds, including the Emergency, but has become the fifth largest economy of the world and is poised to become the third largest economy. It is indeed to the credit of the Constitution and the wisdom of its framers who had the foresight and the vision for the governance of a vast, backward and complex country of India's magnitude. Our resilient Constitution has deepened the roots of democracy and uplifted the masses from poverty and hunger.
[The writer is former Joint Secretary, Lok Sabha Secretariat and former Senior Fellow of the Indian Council of Social Science Research. Currently, he is resource person with the Institute of Constitution and Parliamentary Studies (ICPS)].
Views expressed are personal