The idea of any constitution finds its deepest meaning in the role of the people and their actions. The Constitution expects its citizens to fully realise its transformative potential. The transformative potential is important because our framers were also aware of the immense social challenges lying ahead of the times. The duty of transforming the society ultimately lies in the citizens. History would not judge our Constitution by the uniqueness that it exhibited but it would judge them by the transformation it entails.While the three wings of the State are charged with their own constitutional mandates, the mantel of achieving the transformative ideals of the Constitution lies equally with the citizens”. said Justice DY Chandrachud on Friday
“Our dialogue with our Constitution, as citizens, cannot be stultified or frozen. That is how you see that the Constitution, which was intended to be one with a strong Centre, has, over the years, come to be an increasingly federalist model which acknowledges differences, which recognizes the strength of the polity in the states where the real power resides today”,
He was addressing the motion ‘A borrowed Constitution: fact or myth?’ at the celebration of the birth centenary of veteran lawyer and jurist Nani Palkhivala in New Delhi.
The observation assumes significance in the light of a hearing that is currently underway before a five-judge bench of the Supreme Court- the challenge to the introduction as a Money Bill of the 2017 Finance Act, which altered the mode of selection, appointment, removal, and the qualifications and terms of service of the Presiding Officers and Members of as many as 19 tribunals, conferring extensive powers on the Central government in this behalf. The purported intention having been to circumvent the voice of the Rajya Sabha, the Council of States, Justice Chandrachud had on Thursday reflected that in S. R. Bommai, federalism had been held to be a part of the Basic Structure of the Constitution, with Attorney General K. K. Venugopal replying that federalism is a vast motion which by itself could not govern the issue at hand.
At Friday’s event, citing the Constitution Bench judgments on inter-state trade and commerce in Atiabari (1960) and Automobile Transport (1962), the judge relayed how it has come to be appreciated that “the states must have a larger role to play in the shaping of the destiny of the nation”.
Favouring the practice of judicial borrowing from foreign courts, he explained,
“Many of our core constitutional provisions, like the Fundamental Rights and those governing inter-state trade and commerce, are drafted in abstract terms with a view to allow for their growth with the changing times. The craftsmanship of a judge lies in infusing these words with the soul which we believe the Constitution possesses. In this context, it is useful to look at how the judges in other jurisdictions have similarly considered the problems before them. Through their experience, we question their assumptions which, in turn, serve as stimuli for us to question our own assumptions about our constitutional order. According to scholars, this is not borrowing, but using foreign material to critically re-assess our own constitutional ideas…”
“Justice Scalia of the US Supreme Court often said that foreign legal authorities are not binding and as such should not be used at all. He asked why the US Constitution, which he regarded as most unique in terms of its content and its history, should be confirmed in its interpretation with the readings of the rest of the world…I think that (by virtue of this line of thought), the bond of humanity that links us across jurisdictions, cultures and ideas is ignored…In overturning the decision of the Delhi High Court (de-criminalising homosexuality) in Suresh Kumar Koushal, our Supreme Court refused to engage with the foreign jurisprudence cited by the High Court. It did not consider it to be applicable to ourselves. In Navtej Johar (2018), we overturned this view relying on substantial amounts of comparative materials…
The origin of the Basic Structure doctrine in Kesavananda Bharati was also rooted in the works of a German scholar…Similar to the borrowings of our Constituent Assembly, we have not considered ourselves to be bound blindly by these authorities, but utilized them to broaden our understanding of our rights. After all, The strength of our society is its plurality, and its ability to incorporate change even if it questions some of our Fundamental notions!”, he continued.
Finally, Justice Chandrachud urged that, “Judges can and rather should engage in foreign materials in interpreting our own Constitution” and that “doing so will not take away from the Indianness of the Constitution and its identity, because the migration of ideas only contributes to its evolution without transplanting its soul”.
In his address, the Apex Court judge endeavoured to, if not discharge, evoke questioning of the oft-quoted myth that our Constitution is virtually an accumulation of ideas and values borrowed from different jurisdictions which the Constituent Assembly has only stitched together-
“One member of the Assembly described it as ‘the Music of a Western band as opposed to that of the veena or the sitar’. Another called it ‘a Slavish surrender to the West’. But in Dr. B. R. Ambedkar’s words, there is nothing wrong with borrowing, there is no plagiarism in it, no-one holds a patent over the fundamental idea of a constitution…”
Justice Chandrachud canvassed how the borrowed provisions were made unique to India before they were incorporated in the text of the Constitution-
“Far from the notion of borrowing Part III (Fundamental Rights) from the American Bill of Rights, it was born in the context of India’s history of suppression and the struggle for freedom. Look at the ‘due process’ clause in both. Confused between the American ‘due procedure’ and the ‘procedure established by law’ of Japan, Mr. B. N. Rao visited Justice Felix Frankfurter who explained that the concept of ‘due procedure’ has resulted in the striking down of several welfare legislation in the US- the government’s schemes for fair conditions of work and minimum wages. Accordingly, In view of the nascent stage of our economy, the makers imbibed in Article 21 the ‘procedure established by law'”
In as far as the Directive Principle of State Policies in Part IV are touted as having been borrowed from Ireland, the judge advanced that the Principles have their genesis in the Karachi Resolution adopted by the Congress in March 1931 and finally the 1945 Sapru Report which helped outline the difference between what is justiciable and what is not in terms of Parts III and IV of the Constitution.
“Secularism and federalism have a unique interpretation in India. It is a misnomer to say that the principle of secularism found its place in the Constitution after the 42nd Amendment. The Amendment in fact just recognized what was already running through the Constitution. The Indian model of secularism is also different from the US which envisages separation of the State from religion- the Indian State can and does indeed interfere in religion to the extent of a negative aspect which infringes on the Fundamental Rights of citizens”
“The administrative provisions are said to be derived from the Government of India Act of 1935. But, our Constitution being a result of the freedom struggle against the colonial oppressor and the events of partition and the transgressions of that period, the Constituent Assembly envisaged a duality of roles- drafting of the Constitution, and also administering it in the interim to foster a system where it could be effectively utilised. They chose to continue an administrative apparatus as the British to ensure administrative stability. But, in the process, the shift from an absolutist set-up to a democratic one was not at all ignored…Addressing a new cadre of police officers in 1952, Nehru had stressed on the necessity of this shift in the orientation of the Executive- ‘The police must not just deal with crime and disorder in the general way, they must deal with human beings not as something to be commanded around but won over'”
“The identity of the Constitution evolves through judicial interpretation, through political conflict and through citizen interfaces…the scope of Article 21 has been broadened to include multiple rights, most recently the right to privacy. Although the courts play a role in developing the identity of the Constitution, we must not be sanguine that the courts read life into it. What they read is a sense of vision which is also limited to the scope of the cases brought before them. The daily interface, as human beings, with the Constitution is more important- to combat the injustices of the society and to rise to the occasion in our daily lives as citizens…”, articulated Justice Chandrachud.