Analysis

Constitution Day of India: What can Nepal learn from the Indian Statute?

Jivesh Jha

Jivesh

Adopting a nation’s Constitution is a matter of pride for every country and the people living therein. The ratification of the Constitution is a sign that the country has geared up for consolidating the agendas of different political movements in the state. With this spirit, India adopted and enacted its first Constitution on November 26, 1949.

The Constitution of India, which entered into force on January 26, 1950, begins with a preamble with the opening words of “We, the people…” with which the preamble of UN Charter and US Constitution also start. The Preamble, which was adopted on October 17, 1949, is divided into three parts on the basis of its qualitative characteristics, viz., declarative; revolutionary and promissory. In other words, preamble broadly reflects three things: the source of the Constitution; objects and goals including rights and freedoms for Indian citizens living under the Constitution and the date of adoption of the Constitution.

This way, ‘the preamble reflected the changes that had come over the country as a result of the partition and integration of the Indian states’, said KM Munshi, member of the Constituent Assembly of India.

Facts:

  • Constitution of India adopted and enacted on November 26, 1949
  • Constitution of India came into force on January 26, 1950
  • Constituent Assembly met in sessions for 166 days
  • It took 2 years 11 months 18 days to give birth to the lengthiest Constitution of the world
  • It features 395 Articles, divided into 22 parts and 12 Schedules
  • Now, its home to 448 Articles in 25 parts and 12 Schedules
  • Chief architect of Indian Constitution: Dr BR Ambedkar
  • Chief advisor: Sir BN Rao

Despite these things, the Constitution of India would not have evolved like US Constitution or other Constitutions of the world unless there was a brave Supreme Court put in place to work as guardian of the Constitution. The apex Court of India played an instrumental role in advancing the cause of judicial review and constitutionalism. If facts and figures are something to stand by, India’s neighbors have experimented with many Constitutions to consolidate the democratic credentials. But India adopted a Constitution and she does not wish to compete with her neighbors in enacting the number of Constitutions. Pakistan adopted its first Constitution in 1956, second in 1962 and third in 1973. Similarly, Nepal has experimented with seven Constitutions in 70 years with first in 1948, second in 1951, third in 1959, fourth in 1962, fifth in 1990, sixth in 2007 and seventh in 2015.

There are series of cases where the apex Court of India has responded firmly to give effect to the cause of constitutionalism.

The question whether the word ‘law’ in Article 13 also includes ‘constitutional amendments’ was for the first time considered by the Supreme Court in Shankari Prasad v. Union of India (AIR 1951). The Court held that the word law defined under Article 13(3) did not include law made by parliament under Article 368 [amendment clause]. This interpretation of Shankari Prasad’s case was followed by the majority in Sajjan Singh v State of Rajasthan (1965).  But the top Court laid down a differing view in IC Golakhnath v. State of Punjab (1967) by overruling its decisions pronounced in the aforesaid two cases. It was held that the word ‘law’ in Article 13 did include an amendment to the Constitution passed under Article 368.

Miffed with the verdict of the court, the Indian parliament passed the Constitution (24th Amendment) Act, 1971 to nullify the ruling of IC Golakhnath case. This amendment inserted Clause (4) in Article 13 and Clause (3) in Article 368 to the effect, “Nothing in Article 13 shall apply to any amendment of this Constitution made under Article 368.” The Constitutionality of this amendment was upheld by the Supreme Court in Keshvanand Bharati v. State of Kerala (AIR 1973). It thus laid the controversy to rest. It follows that the term “law” in Article 13 excludes an amendment of the Constitution made under Article 368.

The Keshvanand Bharati case is one of the finest judgments of Supreme Court of India which brought a new constitutional dawn in India.

However, the Keshvanand Bharati case is one of the finest judgments of Supreme Court of India which brought a new constitutional dawn in India. The Court offered a long list of features as basic structure of Indian Constitution which can neither be amended nor be nullified by the parliament. The supremacy of Constitution; republic and democratic form of government; secular form of government; separation of power; federal character of constitution; unity and integrity of nation; sovereignty of India; democratic character of policies of India; individual freedoms; or welfare state were held to be the basic structure of Indian Constitution, meaning thereby the parliament of India is not competent to amend or nullify these foundations of Indian Constitution.

In Indira Gandhi v. Raj Narayan, the Supreme Court added rule of law; judicial review; democracy and fair election; and objectives mentioned in preamble as basic structures of Indian Constitution.

In L Chandra Kumar v. Union of India (1997), the apex Court of India held that clause 2 (d) of Article 323A and clause 3 (d) of Article 323B to the extent they exclude the jurisdiction of the High Court and Supreme Court under Articles 226, 227 and 32 would be unconstitutional and for the same reason Section 28 of Administrative Tribunal Act, 1985 which contains the “exclusion of jurisdiction” clause also held unconstitutional. With this, the apex Court held that the decisions of tribunal can be challenged before the Division Bench of High Court. It is to be noted here that Article 323 A (2d) and Article 323B (3d) were inserted through amendment in Constitution to curtail the power of High Court. But these two provisions were held ultra-vires to the Constitution by the apex Court. In doing so, the Court expanded the horizon of judicial review. Now, the power of judicial review cannot be abrogated even by the amendment of Constitution.

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Image credit: Democratic Audit

Recently, Ayodhya verdict too could be taken as one of the landmark judgments. The Court succeeded to put the controversies at rest by paving the ways for the construction of Ram temple at Ayodhya. The court relied on documentary evidences, travelogues and others to arrive at a conclusion. This too conforms that the people have faith on judiciary. They consider judicial department as the last resort. India believes that the Supreme Court is there to prevail constitutionalism over undemocratic acts.

This year India celebrates 70th Constitution Day. The Supreme Court of India has played an instrumental role in strengthening the constitutional ethos with which Indian democracy is moving forward. Nepal needs to learn from India’s constitutional guarantee of constitutionalism and its longevity. Changing the Constitution every 10 years shows that our leaders lack a long term vision. We need to ensure the durability of this hallowed document.

The writer holds an LLM in Constitutional Law from Uttaranchal University.

Published on 26 November 2019 

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