<p>The law ministry recently notified the appointments of four judges, justices Hemant Gupta, R Subhash Reddy, MR Shah and Ajay Rastogi to the Supreme Court within 48 hours of the Supreme Court Collegium recommending them to the government.</p>

<p>Though it appears to be a welcome move, the modus operandi of the government, vis-a-vis judicial appointments, looks doubtful.</p>

<p>The Union government was under pressure early this year for resisting Justice KM Joseph’s elevation to Supreme Court on the ground that in the All India High Court judges’ seniority list, he was placed at serial number 42 and there were presently 11 chief justices of various high courts who were senior to him.</p>

<p>A brief survey of past appointments makes it evident that seniority either an appointment to the post of chief justice of the high courts or to elevation from high courts to Supreme Court have only been given little weight.</p>

<p>Justice JR Mudholkar, a judge of the Bombay High Court and number 7 among permanent judges of the various high courts was elevated to the Supreme Court (on 3.10.1960) in preference to all the chief justices of the high courts. Justice RS Bachawat was at No. 2 in the list of permanent judges of various high courts when he was appointed to the Supreme Court (on 7.9.1964) in preference to the then chief justices of the high courts.</p>

<p>Justice GK Mitter, No. 8 in the list of permanent judges of the various high courts was appointed to the Supreme Court (on 29.8.1966) bypassing three judges senior to him at the Calcutta High Court, including the chief justice.</p>

<p>Likewise, Justice CA Vaidialingam was appointed to the Supreme Court (on 10.10.1966) when there were two other judges senior to him in the Kerala High Court, including the chief justice. His position in the list of permanent judges of various high courts was number 23. Justice AN Grover was elevated to the Supreme Court on 12.2.1968 when there were two other judges senior to him in the Punjab and Haryana High Court, including the chief justice and his position among permanent judges of the various high courts stood at 39.</p>

<p>Justice AN Ray, who was number 30 among permanent judges of the various high courts and junior to three other judges in the Calcutta High Court, including the chief justice, was elevated to the Supreme Court on 1.8.1969. As was Justice KK Mathew to the Supreme Court (on 4.10.1971) when there were three other judges senior to him in the Kerala High Court, including the chief justice, and his position among permanent judges of the various high courts was number 70.</p>

<p>Likewise, there are many instances that can be narrated. Justice YV Chandrachud was at number 19 in the list of permanent judges of the various high courts and junior to two judges of his own high court, including the then chief justice, when he was appointed to the Supreme Court on 23.8.1972.</p>

<p>This trend has continued. Justice Ranjan Gogoi was elevated to the Supreme Court (on 23.04.2012) before his Supreme Court colleagues justices Madan B Lokur, Kurian Joseph, AK Sikri, SA Bobde, RK Agrawal, NV Ramana, Arun Mishra, AM Khanwilkar, AM Sapre and DY Chandrachud, who were all senior to him.</p>

<p>Justices Deepak Gupta and Naveen Sinha were both appointed Supreme Court judges on (17.02.2017) over the heads of 30 high court judges senior to them as of now. At the time of their appointment on February 17, 2017, they had around 40 high court judges senior to them in various high courts.</p>

<p>Similarly, Justices S Abdul Nazeer and Mohan M Shantanagoudar, both were elevated to Supreme Court (on 17.02.2017) in preference to 20 high court judges senior to them.</p>

<p>The most recent appointments of justices Hemant Gupta, R Subhash Reddy, MR Shah and Ajay Rastogi who stand at numbers 4, 5, 17 and 25 respectively in the all-India combined seniority of high court judges, has once again established that seniority has been given the go by and the choice has always been made in the name of quality and a judge’s worth on the bench.</p>

<p>Judicial appointments seemed to be influenced by political preferences across the world, particularly in the UK, US and India. Historically in UK, ruling political parties make every effort to appoint judges who share their ideology, and who in turn, begin to staff junior and senior ranks of the judiciary with political allies.</p>

<p>Similarly, politics plays an important role in the appointment of judges in the United States of America. Political influence in judicial appointments in India has a long history. George H Gadbois Jr, in his book Judges of the Supreme Court of India (1950-1989), gives crucial insights about the role of Chief Justice of India and the sway of prime minister in such appointments.</p>

<p>Appointment of four judges within 48 hours of collegium’s recommendation does not unveil the government’s concerns towards the judiciary. It rather postulates that these four judges fit in within the schematic framework of the government.<br />
&nbsp;</p>

<p><em>(This article was originally published on DNA. Read the <a href="https://www.dnaindia.com/analysis/column-there-s-nothing-legal-about-it-2684682">original article</a>)</em></p>

<p><em>(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)</em></p>

<p>&nbsp;</p>


The law ministry recently notified the appointments of four judges, justices Hemant Gupta, R Subhash Reddy, MR Shah and Ajay Rastogi to the Supreme Court within 48 hours of the Supreme Court Collegium recommending them to the government.

The law ministry recently notified the appointments of four judges, justices Hemant Gupta, R Subhash Reddy, MR Shah and Ajay Rastogi to the Supreme Court within 48 hours of the Supreme Court Collegium recommending them to the government. Though it appears to be a welcome move, the modus operandi of the government, vis-a-vis judicial appointments, looks doubtful. The Union government was under pressure early this year for resisting Justice KM Joseph’s elevation to Supreme Court on the ground that in the All India High Court judges’ seniority list, he was placed at serial number 42 and there were presently 11 chief justices of various high courts who were senior to him. A brief survey of past appointments makes it evident that seniority either an appointment to the post of chief justice of the high courts or to elevation from high courts to Supreme Court have only been given little weight. Justice JR Mudholkar, a judge of the Bombay High Court and number 7 among permanent judges of the various high courts was elevated to the Supreme Court (on 3.10.1960) in preference to all the chief justices of the high courts. Justice RS Bachawat was at No. 2 in the list of permanent judges of various high courts when he was appointed to the Supreme Court (on 7.9.1964) in preference to the then chief justices of the high courts. Justice GK Mitter, No. 8 in the list of permanent judges of the various high courts was appointed to the Supreme Court (on 29.8.1966) bypassing three judges senior to him at the Calcutta High Court, including the chief justice. Likewise, Justice CA Vaidialingam was appointed to the Supreme Court (on 10.10.1966) when there were two other judges senior to him in the Kerala High Court, including the chief justice. His position in the list of permanent judges of various high courts was number 23. Justice AN Grover was elevated to the Supreme Court on 12.2.1968 when there were two other judges senior to him in the Punjab and Haryana High Court, including the chief justice and his position among permanent judges of the various high courts stood at 39. Justice AN Ray, who was number 30 among permanent judges of the various high courts and junior to three other judges in the Calcutta High Court, including the chief justice, was elevated to the Supreme Court on 1.8.1969. As was Justice KK Mathew to the Supreme Court (on 4.10.1971) when there were three other judges senior to him in the Kerala High Court, including the chief justice, and his position among permanent judges of the various high courts was number 70. Likewise, there are many instances that can be narrated. Justice YV Chandrachud was at number 19 in the list of permanent judges of the various high courts and junior to two judges of his own high court, including the then chief justice, when he was appointed to the Supreme Court on 23.8.1972. This trend has continued. Justice Ranjan Gogoi was elevated to the Supreme Court (on 23.04.2012) before his Supreme Court colleagues justices Madan B Lokur, Kurian Joseph, AK Sikri, SA Bobde, RK Agrawal, NV Ramana, Arun Mishra, AM Khanwilkar, AM Sapre and DY Chandrachud, who were all senior to him. Justices Deepak Gupta and Naveen Sinha were both appointed Supreme Court judges on (17.02.2017) over the heads of 30 high court judges senior to them as of now. At the time of their appointment on February 17, 2017, they had around 40 high court judges senior to them in various high courts. Similarly, Justices S Abdul Nazeer and Mohan M Shantanagoudar, both were elevated to Supreme Court (on 17.02.2017) in preference to 20 high court judges senior to them. The most recent appointments of justices Hemant Gupta, R Subhash Reddy, MR Shah and Ajay Rastogi who stand at numbers 4, 5, 17 and 25 respectively in the all-India combined seniority of high court judges, has once again established that seniority has been given the go by and the choice has always been made in the name of quality and a judge’s worth on the bench. Judicial appointments seemed to be influenced by political preferences across the world, particularly in the UK, US and India. Historically in UK, ruling political parties make every effort to appoint judges who share their ideology, and who in turn, begin to staff junior and senior ranks of the judiciary with political allies. Similarly, politics plays an important role in the appointment of judges in the United States of America. Political influence in judicial appointments in India has a long history. George H Gadbois Jr, in his book Judges of the Supreme Court of India (1950-1989), gives crucial insights about the role of Chief Justice of India and the sway of prime minister in such appointments. Appointment of four judges within 48 hours of collegium’s recommendation does not unveil the government’s concerns towards the judiciary. It rather postulates that these four judges fit in within the schematic framework of the government. (This article was originally published on DNA. Read the original article) (Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Politics plays important role in appointment of judges

<p><br />
Lawyers have played a crucial role in the evolution of Indian democracy. Majority of the freedom struggle leaders and members of the constituent assembly were lawyers. This tradition still continues as lawyers dominate in the governance of country as legislators, ministers, leaders of the opposition, party spokesperson etc. Besides being members of the legislature, they also practice law before courts and earn hefty money. A petition is filed in the Supreme Court to bar &#39;public servants&#39; and &#39;elected representatives&#39; from concurrently practising other professions, declaring it as criminal misconduct as Bar Council of India (Rule 49) prohibits a full-time salaried employee whether government, corporation or private to practice law before a court.&nbsp;</p>

<p>The Salary, Allowances and Pension of Members of Parliament Act, 1954, specified that a member of Parliament is entitled to receive a &lsquo;salary&rsquo; per mensem during the whole of his term of office and &lsquo;an allowance&rsquo; per day during any period of residence on duty. They are entitled to pension charged on the consolidated fund of India, at a time when it has been abolished for other government employees. Besides these, they get several other perks, such as unlimited free train travel, medical facility, chauffer driven car and house etc. Over this, freedom to practice law seems to be prima facie unreasonable and immoral. &nbsp; &nbsp;</p>

<p><strong>A legislator holds public office, perform public duty and, hence, a public servant&nbsp;</strong></p>

<p>&#39;Public office&#39; according to Black&rsquo;s Law Dictionary is &quot;the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government for the benefit of the public. The Constitution, the Representation of People Act, 1951 as well as the Salary, Allowances and Pension of Members of Parliament Act, 1954 establishes beyond doubt that membership of Parliament in an &lsquo;office&rsquo; is as much as it is a position carrying certain responsibilities which are of a public character and it has an existence independent of the holder of the office. &nbsp;&nbsp;</p>

<p>In a democratic form of government, it is the member legislature who represents &#39;we the people&#39; in the process of lawmaking and decides how the funds of the Centre and the States shall be spent while exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the state, the public and the community at large would have greater interest. They have privileges conferred by the constitution to perform their duty effectively and fearlessly. Lately, the Supreme Court through a five-judge Bench in&nbsp;P. V. Narsimha Rao vs. State (1998) categorically stated that MPs and MLAs are public servants.&nbsp;</p>

<p><strong>Withering the duties of legislator&nbsp;</strong></p>

<p>Although there is no provision either in the Constitution or the Rules of Procedure and Conduct of Business of House, defining duties and responsibilities of members of Parliament, nonetheless the work of a legislator is full-time work devoted to the welfare of the people of his constituency. They take part in the proceedings of the house and meet people of their constituencies to address people&rsquo;s issues when the house is not in session. Members of the legislature are also part of several standing committees nominated by the Chairpersons of their respective houses. These committees scrutinise the policies, programmes, bills related to their ministries, and propose recommendations and amendments to the same. Legislators also allocated money for local area development in their constituency. Legislators are, hence, expected to put full service to the public and their constituents ahead of their personal interests.&nbsp;</p>

<p>A member of legislature performs the sovereign function of lawmaking and, therefore, his or her simultaneous involvement in any other profession would be exceedingly unreasonable. Likewise, we do not want part-time advocates as Supreme Court rightly observed in Dr. Haniraj Chulani vs. Bar Council of Maharashtra: &ldquo;Legal profession requires full-time attention and would not countenance an advocate riding two horses or more at a time.&rdquo; Providing lawyers freedom to become a legislator or letting legislators practice law simultaneously is not only violative of Article 14 of the constitution but also cause a state of discontent amongst others.&nbsp;</p>

<p>&nbsp;</p>

<p><em>(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)&nbsp;</em></p>


Besides being members of the legislature, they also practice law before courts and earn hefty money. Letting legislators practice law simultaneously is not only violative of Article 14 of the constitution but also causes a state of discontent amongst others.

Lawyers have played a crucial role in the evolution of Indian democracy. Majority of the freedom struggle leaders and members of the constituent assembly were lawyers. This tradition still continues as lawyers dominate in the governance of country as legislators, ministers, leaders of the opposition, party spokesperson etc. Besides being members of the legislature, they also practice law before courts and earn hefty money. A petition is filed in the Supreme Court to bar 'public servants' and 'elected representatives' from concurrently practising other professions, declaring it as criminal misconduct as Bar Council of India (Rule 49) prohibits a full-time salaried employee whether government, corporation or private to practice law before a court. The Salary, Allowances and Pension of Members of Parliament Act, 1954, specified that a member of Parliament is entitled to receive a ‘salary’ per mensem during the whole of his term of office and ‘an allowance’ per day during any period of residence on duty. They are entitled to pension charged on the consolidated fund of India, at a time when it has been abolished for other government employees. Besides these, they get several other perks, such as unlimited free train travel, medical facility, chauffer driven car and house etc. Over this, freedom to practice law seems to be prima facie unreasonable and immoral. A legislator holds public office, perform public duty and, hence, a public servant 'Public office' according to Black’s Law Dictionary is "the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government for the benefit of the public. The Constitution, the Representation of People Act, 1951 as well as the Salary, Allowances and Pension of Members of Parliament Act, 1954 establishes beyond doubt that membership of Parliament in an ‘office’ is as much as it is a position carrying certain responsibilities which are of a public character and it has an existence independent of the holder of the office. In a democratic form of government, it is the member legislature who represents 'we the people' in the process of lawmaking and decides how the funds of the Centre and the States shall be spent while exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the state, the public and the community at large would have greater interest. They have privileges conferred by the constitution to perform their duty effectively and fearlessly. Lately, the Supreme Court through a five-judge Bench in P. V. Narsimha Rao vs. State (1998) categorically stated that MPs and MLAs are public servants. Withering the duties of legislator Although there is no provision either in the Constitution or the Rules of Procedure and Conduct of Business of House, defining duties and responsibilities of members of Parliament, nonetheless the work of a legislator is full-time work devoted to the welfare of the people of his constituency. They take part in the proceedings of the house and meet people of their constituencies to address people’s issues when the house is not in session. Members of the legislature are also part of several standing committees nominated by the Chairpersons of their respective houses. These committees scrutinise the policies, programmes, bills related to their ministries, and propose recommendations and amendments to the same. Legislators also allocated money for local area development in their constituency. Legislators are, hence, expected to put full service to the public and their constituents ahead of their personal interests. A member of legislature performs the sovereign function of lawmaking and, therefore, his or her simultaneous involvement in any other profession would be exceedingly unreasonable. Likewise, we do not want part-time advocates as Supreme Court rightly observed in Dr. Haniraj Chulani vs. Bar Council of Maharashtra: “Legal profession requires full-time attention and would not countenance an advocate riding two horses or more at a time.” Providing lawyers freedom to become a legislator or letting legislators practice law simultaneously is not only violative of Article 14 of the constitution but also cause a state of discontent amongst others. (Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Opinion: Why legislators should not practise law in India

<p>Freedom fighters had cherished many aspirations and dreams during the arduous course of the freedom struggle. Upon realisation of this dream, they were passionate about making a fresh start in the form and system of a government substantially different from that of alien rulers. Consequently, the arrival of political freedom gave impetus to the drafting of our own Constitution which was objectified on this day of January 26, 1950. &nbsp;</p>

<p>&nbsp;</p>

<p>Constitution of India was, therefore, not a mere a set of fundamental principles that formed the basis of governance; but it codified and reflected certain basic ideals, philosophy and goals that were cherished by our founding fathers. Federalism, separation of powers, constitutionalism, rule of law is at the heart of Constitution. Besides, there are other fundamental principles which contribute meaningfully toward the achievement of liberty, order, and justice.</p>

<p>&nbsp; &nbsp; &nbsp; &nbsp;</p>

<p>First, the Constitution of India was based on the belief that a legitimate Constitution is that which originates with, and is controlled by we the people and, thus, a Constitution is more than a body of substantive rules and principles. Thomas Paine explained this the best when he said, &ldquo;a Constitution is not the act of a government, but of people&nbsp;constituting a government, and a government without a constitution is power without right.&rdquo; This principle is very well entrenched in the Preamble of the Constitution, which declares that the Constitution is ordained and established not by the government, but by &ldquo;We the People of India.&rdquo;&nbsp; &nbsp;</p>

<p>&nbsp;</p>

<p>Second, our Constitution subscribes to the view that the government must in all respects be politically accountable to the governed. This is accomplished through the election process and with the members of the House of Representatives being directly accountable to the electorate. Though sloping towards union, the States have an effective role by virtue of the Upper House, Electoral College to elect the President, and the amendment process.&nbsp; &nbsp;</p>

<p>&nbsp;</p>

<p>Third, the Constitution rested on the proposition that all governments are limited government. A Constitution is a legal, not just a political, limitation on government. It is considered by the Supreme Court, the antithesis of arbitrariness. Instead of advocating parliamentary supremacy, the Indian Constitution affirms that the Constitution shall be the supreme law of the land. &nbsp; &nbsp;</p>

<p>&nbsp;</p>

<p>Fourth, the Constitution embraced the view that in order to ensure constitutionalism i.e. idea of limited government, the powers of government must be defined, distributed and divided. This tendency toward &ldquo;tyranny in the head&rdquo; shall be prevented, or at least discouraged, through a separation of powers among the three branches of the government. &nbsp;</p>

<p>&nbsp;</p>

<p>Fifth, the Constitution of India was premised on the unassailable assumption that the rights and liberties of the people would be protected because the powers of government are limited. The drafters were over conscious and, thus, immunised the power process by inserting negative clauses (Fundamental Rights), inhibiting the government from assuming any such powers along with positive directional clauses (Directive Principles) to take affirmative action.&nbsp; &nbsp;</p>

<p>&nbsp;</p>

<p>However, our Constitution was deficient in certain matters. As in the western conception of rights, Indian Constitution emphasised only rights rather than duties, in spite of the fact that these duties of citizens are encapsulated in the preamble to the Constitution. Duties, such as the duty to uphold the constitution and its ideals, duty to uphold sovereignty, unity and integrity of India, duty to promote harmony and brotherhood amongst all people must now be given substance rather than declarations of ornamental significance.&nbsp;</p>

<p>&nbsp;</p>

<p>Otherwise, it would be impossible for a democratic community like India to ever flourish where the citizens are not enthusiastic to be active participants in the process of governance by assuming responsibilities and discharging citizenship duties with utmost integrity and honesty. Another duty of supreme importance which must be performed is the duty to practice tolerance, otherwise, constitutional democracy will be under threat, while the cherished freedom of expression and dissent will be held captive by fanatic mobs.&nbsp;</p>

<p>&nbsp;</p>

<p>I wish to recap on the virtuous occasion of 69th Republic Day, the finest lines of Justice O. Chinnappa Reddy in National Anthem Case: &ldquo;our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.&quot;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</p>

<p>&nbsp;</p>

<p><em>(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)</em>&nbsp;&nbsp;</p>


India Constitution rests on the proposition that all governments are limited government; the government must in all respects be politically accountable to the governed.

Freedom fighters had cherished many aspirations and dreams during the arduous course of the freedom struggle. Upon realisation of this dream, they were passionate about making a fresh start in the form and system of a government substantially different from that of alien rulers. Consequently, the arrival of political freedom gave impetus to the drafting of our own Constitution which was objectified on this day of January 26, 1950. Constitution of India was, therefore, not a mere a set of fundamental principles that formed the basis of governance; but it codified and reflected certain basic ideals, philosophy and goals that were cherished by our founding fathers. Federalism, separation of powers, constitutionalism, rule of law is at the heart of Constitution. Besides, there are other fundamental principles which contribute meaningfully toward the achievement of liberty, order, and justice. First, the Constitution of India was based on the belief that a legitimate Constitution is that which originates with, and is controlled by we the people and, thus, a Constitution is more than a body of substantive rules and principles. Thomas Paine explained this the best when he said, “a Constitution is not the act of a government, but of people constituting a government, and a government without a constitution is power without right.” This principle is very well entrenched in the Preamble of the Constitution, which declares that the Constitution is ordained and established not by the government, but by “We the People of India.” Second, our Constitution subscribes to the view that the government must in all respects be politically accountable to the governed. This is accomplished through the election process and with the members of the House of Representatives being directly accountable to the electorate. Though sloping towards union, the States have an effective role by virtue of the Upper House, Electoral College to elect the President, and the amendment process. Third, the Constitution rested on the proposition that all governments are limited government. A Constitution is a legal, not just a political, limitation on government. It is considered by the Supreme Court, the antithesis of arbitrariness. Instead of advocating parliamentary supremacy, the Indian Constitution affirms that the Constitution shall be the supreme law of the land. Fourth, the Constitution embraced the view that in order to ensure constitutionalism i.e. idea of limited government, the powers of government must be defined, distributed and divided. This tendency toward “tyranny in the head” shall be prevented, or at least discouraged, through a separation of powers among the three branches of the government. Fifth, the Constitution of India was premised on the unassailable assumption that the rights and liberties of the people would be protected because the powers of government are limited. The drafters were over conscious and, thus, immunised the power process by inserting negative clauses (Fundamental Rights), inhibiting the government from assuming any such powers along with positive directional clauses (Directive Principles) to take affirmative action. However, our Constitution was deficient in certain matters. As in the western conception of rights, Indian Constitution emphasised only rights rather than duties, in spite of the fact that these duties of citizens are encapsulated in the preamble to the Constitution. Duties, such as the duty to uphold the constitution and its ideals, duty to uphold sovereignty, unity and integrity of India, duty to promote harmony and brotherhood amongst all people must now be given substance rather than declarations of ornamental significance. Otherwise, it would be impossible for a democratic community like India to ever flourish where the citizens are not enthusiastic to be active participants in the process of governance by assuming responsibilities and discharging citizenship duties with utmost integrity and honesty. Another duty of supreme importance which must be performed is the duty to practice tolerance, otherwise, constitutional democracy will be under threat, while the cherished freedom of expression and dissent will be held captive by fanatic mobs. I wish to recap on the virtuous occasion of 69th Republic Day, the finest lines of Justice O. Chinnappa Reddy in National Anthem Case: “our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it." (Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Opinion: On 69th Republic Day, what we need to remember about our Constitution

<p>With independence, the people of India fantasised about breathing freely; the Indian Constitution brushed aside all vestiges of subordination which the tyranny of the alien rulers had imposed upon them, declaring all laws inconsistent with the fundamental rights to be void.&nbsp;</p>

<p>&nbsp;</p>

<p>However, within a year or so, the constitutional dream was diluted with the First Amendment of the Constitution that equipped the government with wider powers to stifle liberty by incorporating the phrase &ldquo;Public Order&rdquo; and the Press Objectionable Matters Act, 1951, like those passed during 1910 and 1931. &nbsp;</p>

<p>&nbsp;</p>

<p>With Indira Gandhi becoming the prime minister, the period saw the strident confrontation between the government and the press. Central Censorship orders were passed under the Maintenance of Internal Security Act 1971. The Defence of India Act 1971 and other Acts came into force during this period. The Press Council (Repeal) Act 1976 repealed the Press Council Act and abolished the Press Council. The Parliamentary Proceeding (Protection of Publication) Act, 1976 was too repealed to curb the freedom of the press.&nbsp;</p>

<p>&nbsp;</p>

<p>Some curative measures were taken by the ensuing government but the executive under the existing laws is still adequately equipped to restrain the liberty of the press. However, right since its inception, the free speech clause has always been an endearing fundamental right for the Indian Supreme Court. Starting with Romesh Thapar, and Brij Bhusan cases to recent Shreya Singhal v. Union of India, which quashing section 66A of the Information Technology Act, 2000, we can say that Supreme Court has always come to rescue free speech whenever it was endangered.&nbsp; &nbsp; &nbsp; &nbsp;</p>

<p>&nbsp;</p>

<p>The ongoing uproar on an exhibition of the movie Padmaavat is a blatant specimen of the fact that Indian soil is not yet prepared to nurture the freedom of speech. The film is facing massive protests from fringe groups like &lsquo;Rajput Karni Sena&rsquo;. They publicly and bizarrely exhibited the courage to issue death threats to producer and actors of the film and blocked the historic Chittorgarh Fort for tourists and called for Bharat Bandh on 1 December 2017. Instead of taking stern action against these fringe elements, the government of Rajasthan and some other states obliquely encouraged them to do more mischief.&nbsp; &nbsp; &nbsp;</p>

<p>&nbsp;</p>

<p>Any alleged distortion of historical facts must be dealt with in accordance with the procedure established by law. The Indian Cinematograph Act, 1952 and the Cinematograph (Certification) Rules 1983 empower the Central Board of Film Certification &ldquo;the Censor Board&rdquo; to grant permission to exhibit the film with conditions, without conditions or refuse permission as it thinks appropriate.&nbsp;</p>

<p>&nbsp;</p>

<p>To bring objectivity in its decision and to study the impact of a film on the public, it is mandated that Board may hold a seminar of film critics, writers, historians, community leaders and persons engaged in the film industry. The central government is also vested with revision powers under the Act to deal with any exigencies. Failing all, we have our constitutional courts which uphold freedom of speech as an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than allow monopolisation of that market whether by the government itself or a private licensee.&nbsp;</p>

<p>&nbsp;</p>

<p>Following the due process, the censor board conferred Padmavati&nbsp;a UA certificate and suggested to change the film&rsquo;s title to &ldquo;Padmaavat&rdquo;&nbsp;besides making four other modifications. The board also advised modifications in disclaimers, pertinently adding one regarding not glorifying the practice of&nbsp;Sati&nbsp;and also relevant changes in the song &lsquo;Ghoomar&rsquo; to befit the character portrayed. Incorporating these modifications, the film was proposed to be released on 25th January 2018.&nbsp;</p>

<p>&nbsp;</p>

<p>But, fringe elements sustained its disorderly behaviour and, consequently, governments of Gujarat, Rajasthan, Madhya Pradesh and Haryana imposed a ban on screening of the Film &lsquo;Padmaavat.&rsquo; The producer has to approach the Court for implementation of its fundamental right.&nbsp; The bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar, preserving its pledge, rightly granted an interim injunction against the decision of four states to ban the release and public exhibition of the film Padmaavat.&nbsp;</p>

<p>&nbsp;</p>

<p>People have the right to protest but by constitutional means. The government is bound to ensure that rule of law would reign in all circumstances and at any cost. The subsistence of private armies like Karni Sena is frightening and must be outlawed. &nbsp; &nbsp;</p>

<p>&nbsp;</p>

<p><em>(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)</em>&nbsp;&nbsp;</p>

<p>&nbsp;</p>

<p>&nbsp;</p>


People have the right to protest but by constitutional means. The subsistence of private armies like Karni Sena is frightening and must be outlawed.

With independence, the people of India fantasised about breathing freely; the Indian Constitution brushed aside all vestiges of subordination which the tyranny of the alien rulers had imposed upon them, declaring all laws inconsistent with the fundamental rights to be void. However, within a year or so, the constitutional dream was diluted with the First Amendment of the Constitution that equipped the government with wider powers to stifle liberty by incorporating the phrase “Public Order” and the Press Objectionable Matters Act, 1951, like those passed during 1910 and 1931. With Indira Gandhi becoming the prime minister, the period saw the strident confrontation between the government and the press. Central Censorship orders were passed under the Maintenance of Internal Security Act 1971. The Defence of India Act 1971 and other Acts came into force during this period. The Press Council (Repeal) Act 1976 repealed the Press Council Act and abolished the Press Council. The Parliamentary Proceeding (Protection of Publication) Act, 1976 was too repealed to curb the freedom of the press. Some curative measures were taken by the ensuing government but the executive under the existing laws is still adequately equipped to restrain the liberty of the press. However, right since its inception, the free speech clause has always been an endearing fundamental right for the Indian Supreme Court. Starting with Romesh Thapar, and Brij Bhusan cases to recent Shreya Singhal v. Union of India, which quashing section 66A of the Information Technology Act, 2000, we can say that Supreme Court has always come to rescue free speech whenever it was endangered. The ongoing uproar on an exhibition of the movie Padmaavat is a blatant specimen of the fact that Indian soil is not yet prepared to nurture the freedom of speech. The film is facing massive protests from fringe groups like ‘Rajput Karni Sena’. They publicly and bizarrely exhibited the courage to issue death threats to producer and actors of the film and blocked the historic Chittorgarh Fort for tourists and called for Bharat Bandh on 1 December 2017. Instead of taking stern action against these fringe elements, the government of Rajasthan and some other states obliquely encouraged them to do more mischief. Any alleged distortion of historical facts must be dealt with in accordance with the procedure established by law. The Indian Cinematograph Act, 1952 and the Cinematograph (Certification) Rules 1983 empower the Central Board of Film Certification “the Censor Board” to grant permission to exhibit the film with conditions, without conditions or refuse permission as it thinks appropriate. To bring objectivity in its decision and to study the impact of a film on the public, it is mandated that Board may hold a seminar of film critics, writers, historians, community leaders and persons engaged in the film industry. The central government is also vested with revision powers under the Act to deal with any exigencies. Failing all, we have our constitutional courts which uphold freedom of speech as an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than allow monopolisation of that market whether by the government itself or a private licensee. Following the due process, the censor board conferred Padmavati a UA certificate and suggested to change the film’s title to “Padmaavat” besides making four other modifications. The board also advised modifications in disclaimers, pertinently adding one regarding not glorifying the practice of Sati and also relevant changes in the song ‘Ghoomar’ to befit the character portrayed. Incorporating these modifications, the film was proposed to be released on 25th January 2018. But, fringe elements sustained its disorderly behaviour and, consequently, governments of Gujarat, Rajasthan, Madhya Pradesh and Haryana imposed a ban on screening of the Film ‘Padmaavat.’ The producer has to approach the Court for implementation of its fundamental right. The bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar, preserving its pledge, rightly granted an interim injunction against the decision of four states to ban the release and public exhibition of the film Padmaavat. People have the right to protest but by constitutional means. The government is bound to ensure that rule of law would reign in all circumstances and at any cost. The subsistence of private armies like Karni Sena is frightening and must be outlawed. (Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Opinion: Debate over Padmaavat has devolved into a fight between freedom and fanatics

<p>Judicial governance of India&rsquo;s 1.32 billion population entrusted to the hands of so few is an unprecedented challenge. The Supreme Court as the pater familias of the judicial family has contributed inventively and phenomenally while firmly entrenching the rule of law. The year 2017 was significant for the Supreme Court as it underwent three different changes in regimes. Chief Justice T. S. Thakur who demitted office on 3 January 2017 was succeeded by Chief Justice J. S. Khehar with a small tenure of eight months and then Chief Justice Dipak Mishra took the oath of office on 28th August 2017.&nbsp; The year saw some progressive verdicts, however, there had been some incidents which had cast doubt on the integrity of the judicial institution. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</p>

<p><strong>Verdict Restoring Public Trust</strong></p>

<p>In a path-breaking judgment in the case Shayara Bano v. Union of India), the Supreme Court, by a majority of 3:2, set aside the archaic practice of &lsquo;talaq-e-biddat&rsquo; &ndash; triple talaq. The court held that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save the marriage.&nbsp;</p>

<p>This form of Talaq must, therefore, be held to be violative of the fundamental right contained in Article 14 of the Constitution of India. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well. The dissenting judges, however, regarded triple talaq as an inalienable part of Muslim personal law in India and opined that the practice does not contravene Articles 14, 15 and 21 of the Constitution. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</p>

<p><strong>Progressive Verdict</strong></p>

<p>A nine-Judge Bench of the Supreme Court unanimously upheld the right to privacy as a fundamental right. This historic verdict on the case of Justice K.S. Puttaswamy (Retd.) v. Union of India held privacy to be the constitutional core of human dignity which safeguards individual autonomy and recognises the ability of the individual to control vital aspects of one&#39;s life. Personal choices that govern our way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture.&nbsp; &nbsp; &nbsp; &nbsp;</p>

<p><strong>Verdicts with Political Ramifications&nbsp;</strong></p>

<p>A seven-judge Constitutional Bench on the case of Abhiram Singh v. C. D. Commachen by a 4:3 majority) held that seeking votes in the name of religion, caste or community amounted to corrupt practice and election of a candidate who indulged in it can be set aside. The Bench was interpreting Section 123(3) of the Representation of Peoples Act with reference to a question &ldquo;Will a religious leader&rsquo;s appeal to his followers to vote for a particular political party amount to electoral malpractice&rdquo;. However, the Bench refused to revisit the Hindutva verdict (1995) which held that Hinduism is a way of life and not religion. The dissenting judges however held that such an interference by the court, prohibiting candidates from articulating issues affecting voters reduced democracy to an abstraction. &nbsp;</p>

<p>A verdict with massive political ramifications came when Supreme Court (State (through) CBI v. Shri Kalyan Singh &amp; Others) restored criminal conspiracy charges against senior BJP leaders&rsquo; L K Advani, Uma Bharti, Murli Manohar Joshi and 13 other in Babri Masjid demolition case. The court allowed the appeal filed by the CBI and held that additional charges against Advani, Joshi and others be framed within four weeks.&nbsp;</p>

<p>Invoking its extraordinary constitutional powers under Article 142 of the Constitution, the Bench also transferred the pending separate trial in a Rae Bareilly Magistrate Court and clubbed it with criminal proceedings in the Lucknow CBI Court. The Bench directed the trial court to hold a day-to-day trial without any adjournment and pronounce judgment within two years.&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</p>

<p><strong>Contentious Verdict&nbsp;</strong></p>

<p>While convicting V. K. Sasikala, Ilavarasi and Sudhakaran in disproportionate assets case, the Supreme Court tried to reinstate the confidence of people in the judiciary but came under unexpected indictments. It faced severe criticism when the Chief Justice erroneously intervened in a corruption case which involved a retired judge of the Orissa High Court in order to constitute a bench of his choice to hear the case. It turned out to be worst when a lawyer who was arguing the petition was escorted from the court, flanked by security, after verbally grumbling with the Chief Justice. The episode not only diluted the accomplishments of this year but also substantiated the dubious attitude of Supreme Court in dealing with corruption in the higher judiciary. &nbsp;</p>

<p><em>(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL).</em></p>

<p>&nbsp;</p>

<p>&nbsp;</p>


The year saw some progressive verdicts, however, there had been some incidents which had cast doubt on the integrity of the judicial institution in India.

Judicial governance of India’s 1.32 billion population entrusted to the hands of so few is an unprecedented challenge. The Supreme Court as the pater familias of the judicial family has contributed inventively and phenomenally while firmly entrenching the rule of law. The year 2017 was significant for the Supreme Court as it underwent three different changes in regimes. Chief Justice T. S. Thakur who demitted office on 3 January 2017 was succeeded by Chief Justice J. S. Khehar with a small tenure of eight months and then Chief Justice Dipak Mishra took the oath of office on 28th August 2017. The year saw some progressive verdicts, however, there had been some incidents which had cast doubt on the integrity of the judicial institution. Verdict Restoring Public Trust In a path-breaking judgment in the case Shayara Bano v. Union of India), the Supreme Court, by a majority of 3:2, set aside the archaic practice of ‘talaq-e-biddat’ – triple talaq. The court held that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save the marriage. This form of Talaq must, therefore, be held to be violative of the fundamental right contained in Article 14 of the Constitution of India. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well. The dissenting judges, however, regarded triple talaq as an inalienable part of Muslim personal law in India and opined that the practice does not contravene Articles 14, 15 and 21 of the Constitution. Progressive Verdict A nine-Judge Bench of the Supreme Court unanimously upheld the right to privacy as a fundamental right. This historic verdict on the case of Justice K.S. Puttaswamy (Retd.) v. Union of India held privacy to be the constitutional core of human dignity which safeguards individual autonomy and recognises the ability of the individual to control vital aspects of one's life. Personal choices that govern our way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. Verdicts with Political Ramifications A seven-judge Constitutional Bench on the case of Abhiram Singh v. C. D. Commachen by a 4:3 majority) held that seeking votes in the name of religion, caste or community amounted to corrupt practice and election of a candidate who indulged in it can be set aside. The Bench was interpreting Section 123(3) of the Representation of Peoples Act with reference to a question “Will a religious leader’s appeal to his followers to vote for a particular political party amount to electoral malpractice”. However, the Bench refused to revisit the Hindutva verdict (1995) which held that Hinduism is a way of life and not religion. The dissenting judges however held that such an interference by the court, prohibiting candidates from articulating issues affecting voters reduced democracy to an abstraction. A verdict with massive political ramifications came when Supreme Court (State (through) CBI v. Shri Kalyan Singh & Others) restored criminal conspiracy charges against senior BJP leaders’ L K Advani, Uma Bharti, Murli Manohar Joshi and 13 other in Babri Masjid demolition case. The court allowed the appeal filed by the CBI and held that additional charges against Advani, Joshi and others be framed within four weeks. Invoking its extraordinary constitutional powers under Article 142 of the Constitution, the Bench also transferred the pending separate trial in a Rae Bareilly Magistrate Court and clubbed it with criminal proceedings in the Lucknow CBI Court. The Bench directed the trial court to hold a day-to-day trial without any adjournment and pronounce judgment within two years. Contentious Verdict While convicting V. K. Sasikala, Ilavarasi and Sudhakaran in disproportionate assets case, the Supreme Court tried to reinstate the confidence of people in the judiciary but came under unexpected indictments. It faced severe criticism when the Chief Justice erroneously intervened in a corruption case which involved a retired judge of the Orissa High Court in order to constitute a bench of his choice to hear the case. It turned out to be worst when a lawyer who was arguing the petition was escorted from the court, flanked by security, after verbally grumbling with the Chief Justice. The episode not only diluted the accomplishments of this year but also substantiated the dubious attitude of Supreme Court in dealing with corruption in the higher judiciary. (Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL).

Opinion: What are the landmark moments of Indian judiciary in 2017?

<p>Prime Minister Narendra Modi while addressing the Constitution Day celebration, emphasised the need for the government and judiciary to be on the same page for realising the dream of a &#39;New India&#39;, and doubted whether they are working in unison. Though Modi spoke in a placid manner, his Minister of Law and Justice Mr Ravi Shankar Prasad was harsher while reminding the judiciary that law-making must be left in the realm of those elected to make the law and judiciary should not behave like a super-legislature.</p>

<p>He also mockingly reminded that independence of the judiciary is &lsquo;important&rsquo; but judicial accountability probity and propriety are too indispensable. The message was a patent that this government like any other authoritative government wants a committed judiciary i.e. a judiciary committed to the policies of the government.</p>

<p>The idea and substance of a committed judiciary were practised in the United States. It is well known that Chief Justice John Marshall imposed upon his colleagues the practice of delivering only unanimous opinions in order to secure the fledgling authority of the Supreme Court.</p>

<p>President Thomas Jefferson&rsquo;s objections to this development and his initiatives against this practice, including the appointments of justices of his own choice are equally well documented. Jefferson&rsquo;s appointment of William Johnson as Associate Justice and his subsequent stream of advice to him on breaking Chief Justice Marshall&rsquo;s hold on the court displays his aspiration of having committed judges.</p>

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<h5>When the nation&rsquo;s senior-most judges questioned the government in the name of constitution and justice, they were superseded.</h5>
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<p>The Indian Supreme Court could not remain aloof to this idea of the committed judiciary. Since inception, the government attempted to confine the role of judges. Once Pt. Jawaharlal Nehru while discussing the role of judges expressed his view in following words: &ldquo;If we go wrong here and there, it can be pointed out but in the ultimate analysis no judiciary can stand in judgement over the sovereign will of the entire community. A judge can correct the wrong here and there; they cannot arrogate to themselves the position of the super house of a parliament.&rdquo;</p>

<p>The craving of having a committed judiciary got more prominence with Indira Gandhi when her election was set aside by the Allahabad High Court and some of her political decisions were challenged in cases like Privy Purse case and Bank Nationalisation Case.</p>

<p>When the nation&rsquo;s senior-most judges questioned the government in the name of Constitution and justice, they were superseded. Many judges of the High Court who did not toe the line with the government were transferred. Attempts were made to install &lsquo;committed&rsquo; judges in the Supreme Court.</p>

<p>These installed committed judges tried to protect the interest of the government and when they could not, they penned down dissenting opinions to prove his loyalty. An attempt was also made by the committed Chief Justice of India to overrule the &lsquo;basic structure doctrine&rsquo; by creating a bunch of committed and like-minded judges but fortunately could not succeed.</p>

<p>Mrs Gandhi vindicated her claim for &lsquo;commitment&rsquo; by referring President Roosevelt of the United States of America has appointed judges who were committed to his programmes.</p>

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<h5>The judges must function without fear and favour otherwise the question of their being impartial or independent will be rendered nugatory.</h5>
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<p>The behaviour of the Judge is the fortress for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law. The judges must function without fear and favour otherwise the question of their being impartial or independent will be rendered nugatory.</p>

<p>They are required to &lsquo;uphold the constitution and the laws&rsquo;, &lsquo;without fear&rsquo; and favour. If Judiciary is committed to the policies of the government, the &lsquo;independence of judiciary&rsquo; and the &lsquo;system of checks and balances&rsquo; which are essential features of the constitution will be in peril and constitutional democracy will be reduced to the dictatorship of the majority.</p>

<p>It will also destroy the federal fabric, another basic structure of the constitution. It will create distrust among the federal Union. There are so many disputes between the States and they would not have trust in the Central Government because they might sense that the Centre would favour those States where their own political party is in power.</p>

<p>But they would have faith in the judiciary which is equipped with jurisdiction to solve these disputes and preserve the federal identity of the constitution. The idea of the committed judiciary will spoil this federal trust and confidence.</p>

<p><em>(Disclaimer: The author writes here in a personal capacity).</em></p>


The idea of the committed judiciary will spoil this federal trust and confidence

Prime Minister Narendra Modi while addressing the Constitution Day celebration, emphasised the need for the government and judiciary to be on the same page for realising the dream of a 'New India', and doubted whether they are working in unison. Though Modi spoke in a placid manner, his Minister of Law and Justice Mr Ravi Shankar Prasad was harsher while reminding the judiciary that law-making must be left in the realm of those elected to make the law and judiciary should not behave like a super-legislature. He also mockingly reminded that independence of the judiciary is ‘important’ but judicial accountability probity and propriety are too indispensable. The message was a patent that this government like any other authoritative government wants a committed judiciary i.e. a judiciary committed to the policies of the government. The idea and substance of a committed judiciary were practised in the United States. It is well known that Chief Justice John Marshall imposed upon his colleagues the practice of delivering only unanimous opinions in order to secure the fledgling authority of the Supreme Court. President Thomas Jefferson’s objections to this development and his initiatives against this practice, including the appointments of justices of his own choice are equally well documented. Jefferson’s appointment of William Johnson as Associate Justice and his subsequent stream of advice to him on breaking Chief Justice Marshall’s hold on the court displays his aspiration of having committed judges. When the nation’s senior-most judges questioned the government in the name of constitution and justice, they were superseded. × The Indian Supreme Court could not remain aloof to this idea of the committed judiciary. Since inception, the government attempted to confine the role of judges. Once Pt. Jawaharlal Nehru while discussing the role of judges expressed his view in following words: “If we go wrong here and there, it can be pointed out but in the ultimate analysis no judiciary can stand in judgement over the sovereign will of the entire community. A judge can correct the wrong here and there; they cannot arrogate to themselves the position of the super house of a parliament.” The craving of having a committed judiciary got more prominence with Indira Gandhi when her election was set aside by the Allahabad High Court and some of her political decisions were challenged in cases like Privy Purse case and Bank Nationalisation Case. When the nation’s senior-most judges questioned the government in the name of Constitution and justice, they were superseded. Many judges of the High Court who did not toe the line with the government were transferred. Attempts were made to install ‘committed’ judges in the Supreme Court. These installed committed judges tried to protect the interest of the government and when they could not, they penned down dissenting opinions to prove his loyalty. An attempt was also made by the committed Chief Justice of India to overrule the ‘basic structure doctrine’ by creating a bunch of committed and like-minded judges but fortunately could not succeed. Mrs Gandhi vindicated her claim for ‘commitment’ by referring President Roosevelt of the United States of America has appointed judges who were committed to his programmes. The judges must function without fear and favour otherwise the question of their being impartial or independent will be rendered nugatory. × The behaviour of the Judge is the fortress for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law. The judges must function without fear and favour otherwise the question of their being impartial or independent will be rendered nugatory. They are required to ‘uphold the constitution and the laws’, ‘without fear’ and favour. If Judiciary is committed to the policies of the government, the ‘independence of judiciary’ and the ‘system of checks and balances’ which are essential features of the constitution will be in peril and constitutional democracy will be reduced to the dictatorship of the majority. It will also destroy the federal fabric, another basic structure of the constitution. It will create distrust among the federal Union. There are so many disputes between the States and they would not have trust in the Central Government because they might sense that the Centre would favour those States where their own political party is in power. But they would have faith in the judiciary which is equipped with jurisdiction to solve these disputes and preserve the federal identity of the constitution. The idea of the committed judiciary will spoil this federal trust and confidence. (Disclaimer: The author writes here in a personal capacity).

Opinion: Why judiciary can't be committed to the government

<p>The idea of a written Constitution was seen in terms of its ability to limit the governmental power. Instead of examining the content of the Constitution, this proposition focused on its functional reality and suggested classifying Constitutions as normative, nominal and semantic.</p>

<p>It is not enough that a Constitution is valid in the legal sense. To be normative i.e. real and effective, it must be faithfully followed by all citizens. It requires the socioeconomic and political situation conducive to its adoption. In other words; a normative constitution provides norms which have been accepted by the society in actual practice.</p>

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<h5>Even though legally valid, a Constitution that is not fulfilling the expectations of people in practice lacks existential reality.</h5>
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<p>However, normativity cannot be taken for granted; it requires actual verification in each case. Even though legally valid, a Constitution that is not fulfilling the expectations of people in practice lacks existential reality. A nominal Constitution, therefore, implies that present socio-economic conditions of the country are not yet prepared for accepting the norms laid down by the Constitution.</p>

<p>Perhaps the adoption of the Constitution is premature. But the hope exists, sooner or later, the government and people will agree to the constitutional norms. When a Constitution instead of controlling the governmental power has itself become a tool in the hands of few to perpetuate their vested interest and curtail the individual liberty, it is described as a semantic Constitution.</p>

<p>Whether Indian Constitution is to be characterised as normative, nominal, or semantic cannot be decided from its text alone. In each case, insight into the realities of the power process is required. Drafted in the background of a long nationalist movement Indian Constitution incorporated all the fundamental policy and value choices of a normative Constitution; the most significant was the idea of constitutionalism.</p>

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<h5>The proclamation of Emergency (1975) witnessed an extraordinary phase that not only threatened the existence of constitutionalism in India but also, its legal and judicial system.</h5>
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<p>However, the working of the Constitution in these seven decades casts a doubt on its normative character. In fact, discharge of emergency powers of the Constitution demonstrates more of its semantic character.</p>

<p>The proclamation of Emergency (1975) witnessed an extraordinary phase that not only threatened the existence of constitutionalism in India but also, its legal and judicial system. The power of the executive was enhanced overnight and, eventually, turned into an authoritarian regime, which not only curtailed the freedom of citizens but also, paralysed the independent judiciary. Supersession of judges, arrests and detentions of political leaders, student union leaders, eminent personalities, without trials shocked the entire nation.</p>

<p>Enactment of Maintenance of Internal Security Act and Defense of India Rules silenced every possible opposition. Imposition of family planning programmes, execution of birth control methods like sterilisation and vasectomy witnessed the invasion of governmental power into the personal lives of common people to control sexuality. The censorship of the press to curb the democratic voices was another feature which our government possibly learned from its alien predecessor.</p>

<p>The tendency to disregard the constitutionalism was also reflected in the exercise of power under Article 356 popularly known as &lsquo;President Rule&rsquo;. Being in nature an emergency and extraordinary power meant to be exercised only as a last resort; the power had more often been misused to distract the democratic and federal fabric of the constitution.</p>

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<h5>In more than 52 cases out of 75, Article 356 has been used for political purposes rather than constitutional.</h5>
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<p>A survey of the use of Article 356 shows that as of now, the President&rsquo;s Rule has been imposed more than hundred times. Sarkaria Commission which analysed 75 cases of President&rsquo;s Rule from June 1951 to May 1987 ( 1950-1954- 3 times, 1955-1959- 3 times, 1960-1964- 2 times, 1965-1969- 9 times, 1970- 1974-19 times, 1975-1979- 21 times, 1980-1987- 18 times) found in more than 52 cases out of 75, Article 356 has been used for political purposes rather than constitutional.</p>

<p>On three occasions (in 1979, 1980 &amp;amp; 1992) assemblies had been dissolved en mass. A Constitution is expected to endure for a long time and therefore the success of institutions requires in those who have to work, readiness to learn from failures of the past, respect the viewpoints of others and capacity for developing healthy conventions an aspect where we perhaps failed and failed miserably.</p>

<p>The post-emergency phase too witnessed a series of draconian laws like AFSPA, which shows that life and liberty of the citizens is still a plaything in the hands of a majority government. A lot needs to be done in the wake of global standards to claim a normative status.</p>

<p><em>(Disclaimer: The author writes here in a personal capacity).</em></p>


Even though legally valid, a Constitution that is not fulfilling the expectations of people in practice lacks existential reality.

The idea of a written Constitution was seen in terms of its ability to limit the governmental power. Instead of examining the content of the Constitution, this proposition focused on its functional reality and suggested classifying Constitutions as normative, nominal and semantic. It is not enough that a Constitution is valid in the legal sense. To be normative i.e. real and effective, it must be faithfully followed by all citizens. It requires the socioeconomic and political situation conducive to its adoption. In other words; a normative constitution provides norms which have been accepted by the society in actual practice. Even though legally valid, a Constitution that is not fulfilling the expectations of people in practice lacks existential reality. × However, normativity cannot be taken for granted; it requires actual verification in each case. Even though legally valid, a Constitution that is not fulfilling the expectations of people in practice lacks existential reality. A nominal Constitution, therefore, implies that present socio-economic conditions of the country are not yet prepared for accepting the norms laid down by the Constitution. Perhaps the adoption of the Constitution is premature. But the hope exists, sooner or later, the government and people will agree to the constitutional norms. When a Constitution instead of controlling the governmental power has itself become a tool in the hands of few to perpetuate their vested interest and curtail the individual liberty, it is described as a semantic Constitution. Whether Indian Constitution is to be characterised as normative, nominal, or semantic cannot be decided from its text alone. In each case, insight into the realities of the power process is required. Drafted in the background of a long nationalist movement Indian Constitution incorporated all the fundamental policy and value choices of a normative Constitution; the most significant was the idea of constitutionalism. The proclamation of Emergency (1975) witnessed an extraordinary phase that not only threatened the existence of constitutionalism in India but also, its legal and judicial system. × However, the working of the Constitution in these seven decades casts a doubt on its normative character. In fact, discharge of emergency powers of the Constitution demonstrates more of its semantic character. The proclamation of Emergency (1975) witnessed an extraordinary phase that not only threatened the existence of constitutionalism in India but also, its legal and judicial system. The power of the executive was enhanced overnight and, eventually, turned into an authoritarian regime, which not only curtailed the freedom of citizens but also, paralysed the independent judiciary. Supersession of judges, arrests and detentions of political leaders, student union leaders, eminent personalities, without trials shocked the entire nation. Enactment of Maintenance of Internal Security Act and Defense of India Rules silenced every possible opposition. Imposition of family planning programmes, execution of birth control methods like sterilisation and vasectomy witnessed the invasion of governmental power into the personal lives of common people to control sexuality. The censorship of the press to curb the democratic voices was another feature which our government possibly learned from its alien predecessor. The tendency to disregard the constitutionalism was also reflected in the exercise of power under Article 356 popularly known as ‘President Rule’. Being in nature an emergency and extraordinary power meant to be exercised only as a last resort; the power had more often been misused to distract the democratic and federal fabric of the constitution. In more than 52 cases out of 75, Article 356 has been used for political purposes rather than constitutional. × A survey of the use of Article 356 shows that as of now, the President’s Rule has been imposed more than hundred times. Sarkaria Commission which analysed 75 cases of President’s Rule from June 1951 to May 1987 ( 1950-1954- 3 times, 1955-1959- 3 times, 1960-1964- 2 times, 1965-1969- 9 times, 1970- 1974-19 times, 1975-1979- 21 times, 1980-1987- 18 times) found in more than 52 cases out of 75, Article 356 has been used for political purposes rather than constitutional. On three occasions (in 1979, 1980 &amp; 1992) assemblies had been dissolved en mass. A Constitution is expected to endure for a long time and therefore the success of institutions requires in those who have to work, readiness to learn from failures of the past, respect the viewpoints of others and capacity for developing healthy conventions an aspect where we perhaps failed and failed miserably. The post-emergency phase too witnessed a series of draconian laws like AFSPA, which shows that life and liberty of the citizens is still a plaything in the hands of a majority government. A lot needs to be done in the wake of global standards to claim a normative status. (Disclaimer: The author writes here in a personal capacity).

Opinion: Does the Constitution of India fulfill expectations of citizens

Author

Zee News Rajasthan

Editor

Yogesh Pratap Singh

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