• Reading the Constitution

    Translated from Kannada by M.G Hegde

    Justice H N Nagamohan Das

    November 26, 2019

    26th of November is celebrated as Constitutional Day or Samvidhan Divas in India every year to commemorate the adoption of the Constitution of India.
     
    Our constitution universally acclaimed, is a milestone in the direction of achieving equality in modern India. The dreams and desires of a people that pressurized and hankered after a cheerful life of Equality, Brotherhood, and Human relationships fructified into the Constitution after Independence. Our Constitution is eminently capable of transforming the dream of India dreamt by many a martyr and freedom fighter under the brilliant leadership of Dr. B. R. Ambedkar who dreamt of quality. Reading it has to remain the first priority of all of us.

    Reading the Constitution was first written by Justice H.N Nagamohan Das in Kannada and later translated in English by M.G Hegde. The following are excerpts from the chapters “Basic Features of the Constitution" and “Amendments to the Constitution” of the book.

    Basic Features of the Constitution
     

    Our Constitution has been framed on the foundation of certain fundamental principles. Though they have not been distinctly specified under the title Fundamental Principles, they have been internalised.

    Article 368 empowers the Parliament to amend the Constitution. However, there is no authority to replace the existing Constitution with a new one under this provision. The Supreme Court of India has in the case of Keshavananda Bharathi (1973(4) SCC 255) deliberated if the power of the Legislature to amend the Constitution is absolute or limited. While doing so the Supreme Court has asked itself the following questions:

    i. Can the Sovereignty of the nation be undermined and the nation be subjected to a foreign rule?
    ii. Can the present democratic set be replaced by Monarchy or dictatorship?
    iii. Can the Union of India be dissolved and a confederacy of Independent States be established?
    iv. Can the secular fabric of the nation be replaced by a government based on religion?
    v. Can the Rights of the people and the Minorities be abolished?
    vi. Can the people’s verdict to create a Welfare state be abrogated?
    vii. Can the working of both the houses of the Parliament be extended sine die?
    viii. Can the Legislature be prohibited from amending the Constitution either in accordance with law or in any other manner?

    Article 368 does not empower the Legislature to amend the basic features of the Constitution. Supreme Court has diligently listed out the Fundamental Principles integral to the Constitution so at no time in future some of the characteristics incorporated by the authors of the Constitution be changed or removed through amendments. It has asserted, “These basic features cannot be changed or amended”. In this and in other successive judgments passed by the Supreme Court, the following principles are declared basic features of the Constitution:

    1. The Supremacy of the Constitution
    2. The Sovereignty of India
    3. Parliamentary Democracy
    4. The concept of Welfare State
    5. Secularism
    6. Independence of the Legislature, the Executive and the Judiciary
    7. The Federal structure of the Union
    8. The unity and integrity of the nation
    9. Judicial Review
    10. Freedom and dignity of the individual
    11. The principle of free and fair elections
    12. Social Justice
    13. Natural Justice
    14. Fundamental Rights
    Amendments to the Constitution
     

    The Constitution was framed keeping in mind the specific moment and the existent state and conditions. Suitable amendments have to be made to the Constitution keeping in mind the changing times, the new conditions and the circumstance. While making an amendment the past experience, the necessity of present review, relevance, future development and principles that are just need to be bore in mind.

    Jawaharlal Nehru’s idea about amending the Constitution is as follows:

    “If you make anything rigid and permanent you stop the nation’s growth, of a living vital, organic people…In any event, we could not make this constitution so rigid that it cannot be adopted to changing conditions. When the world is in a period of transition what we may do today may not be wholly applicable tomorrow. To provide opportunity to amend the Constitution is also to allow the Constitution to transform along with the Society from time to time and make the Constitution responsive to Contemporary society”.

    Keeping in mind all those warnings, our Constitution has been amended 102 times in the last 68 years. The most significant of the amendment are as follows:

    1. 1st Amendment 1951: The States were empowered to legislate specific provisions for the development of socially backward classes.
    2. 5th Amendment 1976: Unification of States was done.
    3. 42nd Amendment 1976: The following changes were effected during the Emergency period:
      a.Two words “Socialist” and “Secular” as well as “Integrity” along with “entirety” of the nation were added to the Preamble of the Constitution.
      b. The List of Fundamental Duties was added to the Constitution.
      c. To provide equal justice to all and free legal advice to the weak.
      d. Creating opportunity to the workers to participate in business administration.
      e. Assigned priority to preserve Nature, forest, animals and other natural resources.
      f. Provided for proclaiming emergency in any part of the country.
      g. The Central Government was empowered to deploy armed forces in any state to enforce Law and order under critical situations.
    4. 44rth Amendment 1978:
      a. Some of the excesses of the 42nd Amendment were rescinded and reverted to the earlier status.
      b. The Right to Property was removed from Fundamental Rights.
      c.  Fundamental Rights guaranteed through Articles 20 and 21 were made non-negotiable even under Emergency Conditions.
    5. 52nd Amendement 1985
      The defection of Elected Representatives was made illegal and Anti-defection law awas added to the 10th Schedule.
    6. 61st Amendment 1989
      The minimum age for voting was reduced to 18 from 21 years
    7. 73rd Amendment 1992:
      The Panchayat Raj System was brought into force.
    8. 86th Amendement 2002:
      Right to Compulsory Education was given to Children between 6 and 14 years of age.

       

       

       

       

       


    Justice H. N Nagamohan Das was appointed as a Judged of Karnataka High Court. After retirement as a Judge in 2014 he practiced law as designated Senior lawyer at the Supreme Court.

    This is an excerpt from Reading the Constitution written by Justice H.N Nagamohan Das and published by Sahayana R.V Bhandari Memorial Cultural Study Centre. Republished here with permission from the publisher.

    Donate to the Indian Writers' Forum, a public trust that belongs to all of us.