Bennett University: Reflections on the working of the Indian Constitution


There is a need to reflect upon the working of the Indian Constitution during the last seven decades, writes Prof (Dr) Pradeep Kulshreshtha, dean, School of Law, Bennett University
The Constitution of India was enacted and adopted on November 26, 1949, and this is celebrated each year, as Constitution Day or Samvidhan Divas. The Preambular declarations of Justice, Liberty, Equality, Fraternity, Dignity of the individual, and Unity and Integrity of the nation, well summarised the underlying philosophy of the Constitution. It commences with the famous words ‘We the People…’. The Constitution of the United States of America also has the same opening lines, signifying the close bond between the Constitutional values between the oldest and the largest democracies of the world.
As we celebrate the forthcoming Constitution Day during the Azadi Ka Amrit Mahotsav, there is a need to reflect upon the working of the Indian Constitution during the last seven decades. Father of the Indian Constitution, Dr BR Ambedkar, while delivering his last address to the Constituent Assembly on November 25, 1949, said, “however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot…”. One of its remarkable achievements of India is that it is the Fifth largest economy and as the global recognition of its rising stature, India has assumed the presidency of G20 to secure global economic growth and prosperity. This conglomerate of G20 nations represents more than 80% of the world’s GDP, making it a powerful comity.
However, despite the economic growth, fulfilment of the fundamental right to speedy justice remains one of the primary concerns. The Supreme Court of India in Kesavanand Bharti vs State of Kerala [1973] held that the Parliament while exercising its amending powers under Article 368 has the plenary amendment powers, however, such amendment shall not violate the basic structure of the Constitution and, the independence of the Judiciary has been held as part of the basic structure of the Constitution. One of the factors responsible for delay in the administration of justice is the large vacancies of judges in the High Courts. Article 124 and Article 217 provide for the procedure of the appointment of Supreme Court and High Court Judges, respectively, therein the President, after consultation with the Chief Justice of India and the other Judges, shall make the appointment. Thereby striking a check and balance between the executive and judiciary. However, ADM Jabalpur vs SS Shukla [1976] judgment signalled a gradual weakening of this check and balance, largely in favour of the executive and to regain this balance, the Apex Court in Supreme Court Advocates on Record Association vs Union of India [1993] by a 7:2 majority held the primacy of the judiciary in matters of appointments of the Supreme Court and High Court judges.
The prevailing collegium system of appointment of Supreme Court and High Court judges has been subjected to scrutiny with concerns regarding a lack of procedural transparency. This also leads to frequent deadlocks between the executive and judiciary, the two main organs of the state and this stalemate calls for an early resolution by the reintroduction of the NJAC Bill, after discussion between all stakeholders as Dr Ambedkar in his address to the Constituent Assembly, prophetically said that ‘If hereafter things go wrong, we will have nobody to blame’.

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