‘Criticism on Indian Constitution is Sans Valid Reason’

Arvind Datar SA is a Senior Advocate in India whose practice is focused particularly on constitutional, commercial, taxation and regulatory laws, mainly before the Supreme Court of India. He also appears as counsel before various High Courts, statutory tribunals and in bilateral investment treaty and international commercial arbitrations.He started his legal career in 1980, as an Advocate in the Chambers of Mr. N. Natarajan, Senior Advocate, and Mrs. Ramani Natarajan. He later joined the office of M/s. Subbaraya Aiyer, Padmanabhan and Ramamani, where he practiced income tax and central excise/customs laws.Mr Datar set up independent practice in 1984 and appeared primarily before the Madras High Court on its original, appellate and writ sides. During this time, he was predominantly engaged in matters relating to income tax and central excise, customs and company law.He was designated as Senior Advocate by the Madras High Court in 2000.Mr Datar routinely appears before the Supreme Court of India in matters relating to constitutional, corporate, commercial, tax and regulatory laws. He also appears as Amicus Curiae appointed by the Supreme Court and various High Courts, to assist the court in matters on questions of constitutional and taxation laws.  In this interview with ABHISH K. BOSE, Arvind P Dattar shares his opinion on the Constitution of India and other topical issues.  

Excerpts from the interview 

Abhish K Bose:  Bibek Dibroy, Chairman of the Economic Advisory Council to the Prime Minister demanded that India needs a new constitution.  In a newspaper article he maintained that “India no longer possess the Constitution India inherited in 1950. It has been amended, not always for the better, though since 1973 we have been told its ‘basic structure’ cannot be altered”. Mr Dibroy said that the current Constitution is largely based on the Government of India Act of 1935 and observes that it is part of colonial legacy. Does this point of view reflect the intent to formulate a new Constitution in the ruling dispensation? What are the likely motives underlying this proposal.?  How do you respond to Dibroy’s views? 

Ans.  (i) It has become unfortunately fashionable to criticizing the Constitution on the ground that it is a part of a “colonial legacy”.  The criticism is entirely misplaced.  No doubt, the Constitution is based on the Government of India Act, 1935 but critics like Mr. Debroy should do more research before making such unjustified criticism. 

(ii) It is often forgotten that there was a separate Drafting Committee to prepare our Constitution and which first met on August 20, 1947.  It held meetings for 141 days. Dr. B.R. Ambedkar was the Chairman of this Drafting Committee.  The initial draft was prepared by Sir B.N. Rau and had 243 Articles and 13 Schedules.  Out of 11 Sessions of the Constituent Assembly, which began on November 26, 1949, four Sessions lasting for 114 days were devoted to the drafting of the Constitution alone.  Members of the Assembly tabled a total of 7650 amendments and 2473 of them were actually moved and considered and the final draft of the Constitution was prepared with 395 Articles and 8 Schedules. The Drafting Committee consisted of intellectuals of the highest order.  It is an insult to their memory to label the Constitution as a colonial legacy.  The present Constitution is a result of intense debate and consideration and not  a cut-copy-paste job. 

(iii) It also cannot be labelled as a colonial Constitution, but it is,in fact a truly international Constitution.  Our chapter on fundamental rights has adopted several provisions from the U.S. and other Constitutions.  Part-IV on Directive Principles is derived from the Irish Constitution.  Therefore, no serious student of the Constitution can call it as a colonial Constitution.

A Constituent Assembly of India meeting in 1950. B.R. Ambedkar can be seen seated top-right.

(iv) It is important to remember the speech of Dr. Ambedkar made on November 25, 1949, where he said that, after independence we will not have the excuse of blaming the British for things going wrongs because after independence and we have nobody to blame but ourselves.

(v) None of those who are criticizing the Constitution being part of a colonial legacy are able to point out even one provision which has been an impediment or a hurdle in achieving our core constitutional values of implementing the Directive Principles.

Abhish K. Bose:  Article 14 of the Constitution that deals with fundamental rights states that “ the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India”. However, the laws including the Citizenship Amendment Act and other moves to exclude the religious minorities from the ambit of Constitutional guarantees are in violation of the letter and spirit of the article 14. On what ground can the CAA pass muster, given that Article 14 stands in the Constitution? What are the remedies enshrined in the Constitution if and when the State acts in contravention of Article 14, especially given that the judicial system in India is coming under increasing executive displeasure for its impartiality, case in point being the menacing statement by the former Minister of Law Mr. Rijuju that the Supreme Court is behaving like an opposition party?

Ans.  (i)      It is not only Article 14 but also other Articles that are equally important.  I do not wish to comment on the statement about excluding religious minorities from the ambit of constitutional guarantee.  In any Act, whether it is the Citizenship Amendment Act or any other law, violates the rights of minorities or the right to religious freedom given to all Indian citizens (including the majority), it will be struck down by the High Courts or the Supreme Court. Despite all odds, it is ultimately the judiciary which will ensure a protection of our fundamental rights and core constitutional values. 

(ii) I do not wish to comment on the statement of the former Law Minister, Shri Kiren Rijiju.

Abhish K. Bose  : According to the constitutional scholar, Prof Granville Austin, the Constitution of India has three distinct strands; namely, protecting and enhancing national unity and integrity, establishing the institutions of democracy and fostering social reform. Do you think that the enduring characteristics of these core features of the Constitution are in peril of being eroded at the present time?    

Ans.  (i) The enduring characteristics of our Constitution were in peril of being eroded earlier as well.  Indeed, the enduring characteristics were actually eroded in the Emergency.   The judgment in the case of Kesavananda Bharati rendered 50 years ago ensures that the basic features are not altered. Further, the core features of the Constitution can also be eroded at the Central and State level by daily defaults in governance.  If the district judiciary and the local administration are not strengthened, our Constitutional guarantees will be in peril. For example, if vacancies in the lower judiciary are not filled, resulting in delay in considering bail applications, there is an erosion of the right to liberty of  thousands of citizens.

Abhish K. Bose  :  Legal scholar G Mohan Gopal maintained that the Sangh Parivar is trying to establish the Hindu Rashtra by co-opting the judiciary. The evidences he adduced to reach this conclusion are instances of the overt or covert affinity to Hindutva ideology that Judges display in the professional and personal stances. How widespread is this trend in lower courts? If the Judges choose to have recourse to sources other than constitutionalist principles in adjudication, what happens to the commitment to ‘justice’ stated in the Preamble to the Constitution? What, if any, are the remedies available to citizens when justice for them happens to be short-changed due to ideological considerations or the self-abasement of officers of the judicial system before the Executive? Do you expect that the right to appeal against an unfair verdict could become meaningless if this trend gains ground? 

Ans. (i) I have not seen the evidence adduced by Prof. Mohan Gopal.  I have no knowledge of this trend in lower courts.  It is dangerous to make far-reaching statements without empirical data particularly when India has 28 States and 140 crore people. 

 (ii) The present fourth question (Q. No. 4) proceeds on several surmises, conjectures and assumptions and it will not be proper on my part to answer this question unless the factual data is scrutinized,and concrete instances examined.

Abhish K. Bose  :  While a segment of the Judges are favouring theocratic influences in judicial pronouncements, shouldn’t prophetic voices become louder from among the legal fraternity to safeguard the Constitution? Given that judges tend to be conservative and un-confrontationist, do you expect this to happen in India? As of now, individual voices from the legal fraternity are heard sounding concerns in this regard. Do you expect this to die down? 

Ans.  (i) Once again, the fifth question is also based on assumptions.  Which is the segment of judges favouring theoretical influence?  Who are these judges and in which State is this happening?  There are several judges, particularly in the High Court and the Supreme Court who have stood up and upheld constitutional values.

(ii) It is also wrong to  label all judges as “conservative and non-confrontational”.  It is important to note that judges have a duty to only interpret the law even if they do not agree with the policy of the ruling Government. Judges, in fact,  have to be conservative and non-confrontational; they cannot be radical and have confrontations with the legislature.  The role of the judiciary is only to interpret the law.

Abhish K. Bose  :  Corruption in judiciary is a matter of concern.  The incident at the Kerala High Court, in which a lawyer allegedly received bribes from accused persons for getting favourable verdicts over the claim that the money is to be given to the judges handling the cases may have caught your attention. Apart from deviation from the Constitutional principles, corruption, including the lowering of judicial professionalism, in the judiciary is causing widespread concern.  In your opinion, how widespread is this infection in the judiciary? What are the provisions to be put in place, according to you, to ensure that the corruption rampant in the society does not spread into the Judiciary? 

Ans.  Corruption is a matter of concern in all branches of life.  There are allegations of corruptions in the judiciary and it is an issue which has to be tackled.  There is no data as to how widespread this problem is in the subordinate judiciary or in the higher courts.  The way to reduce and ensure that judiciary remains corruption free is to select the best possible judges at all levels.  In particular, we must choose judges solely on merit and regardless of their political and other inclinations.

High Court of Kerala

Abhish K. Bose  :  Is judicial activism justify itself on occasions when the Executive fails to discharge its functions, as in the case of the on-going violence in Manipur where the State machinery seems to have broken down utterly. Do you think the Supreme Court, which is the custodian of the Constitution, was too slow in intervening in this matter? Also, do you think the Supreme Court should handle this matter more proactively and effectively? If you do, in what ways?   

Ans.  (i) I do not have details of the problems of Manipur.  As I have not studied the Supreme Court orders on the Manipur issue, I should not offer comments.    I can only say that it is not fair to expect the High Court and the Supreme Court to provide solutions to all problems facing our country. 

(ii) India is a vast country and there are frequent clashes or problems relating to law and order.   Will it be right on the part of the Supreme Court to start being proactive in all such cases?   These are situations that should be handled only by the executive.   The courts should be concerned only with non-compliance with statutory norms.

Abhish K. Bose  : How do you view the role of the press, deemed the pillar of democracy? Has the journalist fraternity abandoned, barring rare exemptions, their duty to speak truth to power, in their eagerness to secure and enjoy the hugely profitable patronage of the powers that be? In the wake of the Executive’s determined bid to co-opt the media, and the mounting resentment of freedom of thought and expression, how can members of the media fraternity be expected to stay true to the integrity of their profession? Why is press freedom not an electoral issue, given that it is an issue of enormous significance for the health of democracy?

Ans.  (i) There is a serious threat to the freedom of the press both electronic and digital.  It is unfortunate that any criticism of the Government is not tolerated.  It is unfortunate, that several journalists have had to face charges of sedition and were also booked under UAPA.  The Supreme Court had to grant interim orders stating that no further action will be taken in cases relating to sedition. Sadly, this is not just an issue in India but freedom of the press is under threat in several countries.

(ii)  It is important that our leaders realize that any criticism in the Press should be taken as valuable feedback and become the basis for course-corrections.  A press that is expected to only sing praises of the Government will cause long-term damage to any republican democracy. Historically, suppressing or discouraging dissent has always been counterproductive.

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