The evolution and framing of the Constitution: It does not impose, with reason, the same burden of accountability on the Judiciary as the Executive and the Legislature
- Page 6/Editorial
- GS 2: Indian Constitution – Evolution; Structure, organization and functioning of the Judiciary
Context: Constitution day recently passed which is on November 26 when various intersting speeches were made including one of CJI NV Ramanna. This year too with the Government of India organising a grand event in the Central Hall of Parliament, reminded citizens that the Indian Constitution was adopted by the Constituent Assembly this day, 72 years ago in that very hall.
The Framing of the constitution:
1. Ideals of the constitution took decades to be developed:
- Culmination of years of Independence struggle: The framing of the Constitution is not an isolated and accidental event in the sense that one fine morning, a few barristers and jurists got together and decided that India needed a Constitution and began writing it.
- The constituent assembly demand of 1935: The Indian National Congress, under the leadership of Pandit Jawaharlal Nehru, had demanded, in 1935, a Constituent Assembly to frame a Constitution for free India, and Nehru wanted the election to be held to the Assembly on the basis of adult franchise. It became a reality only 11 years later, in 1946, but the election was held on the basis of communal representation.
- Framing: After almost three years of hard work, the Constitution was completed in November 1949 and was adopted by the Constituent Assembly on November 26.
- Adoption: Although the Constitution was adopted and signed by the President of the Constituent Assembly, Dr. Rajendra Prasad, on that day, it was brought into effect only on January 26, 1950. This date was chosen because it was on this day in 1930 that the Indian National Congress under the presidentship of Nehru declared ‘Poorna Swaraj’ (complete independence) for India.
2. Nehru’s contribution:
- Objective resolution of 1946: It was his Objectives Resolution which formed the Preamble of the Constitution. It contained the philosophy, the vision and the goal of the Constitution. These were borrowed from European Renaissance, the America Independence and the French Revolution.
- The ideas of liberty, equality and fraternity and freedom of speech, freedom of conscience, justice-social economic and politics permeated the Indian Constitution under the influence of Nehru. The Constitution ushered in an era of equality, signifying a complete break with an unsavoury past.
3. Choice of Ambedkar
- Concretising of the concept of social equality: Dr. Ambedkar was an original thinker and a very perceptive social scientist who had a keen understanding of the terrible structural inadequacies of Hindu society and its philosophical pretentions.
- The Chairman: Dr. Ambedkar became the Chairman of the drafting Committee perhaps incidentally. He admits in one of his famous speeches in the Constituent Assembly that he had come there to plead for the depressed classes, but the Assembly made him the Chairman.
- Radical difference with Gandhi: He radically deferred with Gandhi on many crucial issues and had serious differences with the Congress. He ridiculed civil disobedience, non-cooperation and Satyagraha and said “these methods are nothing but the grammar of anarchy and the sooner they are abandoned, the better for us”.
- But the Constituent Assembly, which had an overwhelming majority of Congressmen, chose him as the Chairman of the drafting Committee. The great men who led the freedom movement and guided the making of the Constitution, had displayed tremendous foresight in choosing Dr. Ambedkar to draft the Constitution.
On Judicial accountability
4. Concept of accountability in the constitution: The Preamble begins with “We, the People of India”, who are the sovereign, and every organ of the state is ultimately accountable to them.
- But, accountability is a nuanced term which is understood or interpreted differently in different contexts.
- Accountability of the executive: In a parliamentary system with the Cabinet form of government, the Executive is accountable to the Legislature, because the Legislature consists of representatives of the people. Therefore, if the Legislature withdraws support to the government, it does not survive.
- Accountability of the Legislature: They are accountable to the people who elect them. They have to go back to them every five years.
5.But, how is judicial accountability dealt with by the Constitution? Recently, this interesting issue was raised by the present Chief Justice of India, N.V. Ramana, in one of his thought-provoking speeches, on November 26, in the context of the Constitution Day celebrations.
- He said, “The framers of the Constitution made accountability an integral element with respect to the Legislature and Executive. However, they consciously decided to keep the Judiciary on [a] different pedestal.”
6.Judiciary is kept on different pedestal: The mandate given to the Judiciary is to do justice to the people, and, therefore, the Constitution made it an independent institution answerable neither to the Executive nor to the Legislature in respect of its functions.
- Article 142 brings in the concept of complete justice: The top court, where all litigations terminate, is mandated to do complete justice. In order to be able to do that, the Judiciary has been placed on a different pedestal.
- Example of trust in Judiciary: For example, there is no denial that the doctrine of ‘basic structure’ propounded by the Supreme Court in the Kesavananda Bharati case has in a way saved the Constitution from being mutilated by politicians who believe in neither democracy nor in justice.
Conclusion: An independent judiciary which does not have to look over its shoulder is the pride of the Indian Republic. Accountability of the Judiciary in the political sense is a disaster. “We, the People of India” made it independent so that it does complete justice to us. The Chief Justice of India knew what he was saying.