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Saturday, November 28, 2015

THE CONSTITUTION OF INDIA [3] AN ASIDE

THE CONSTITUTION OF INDIA
[3]
AN ASIDE



Innamburan
November 28, 2015


This series focuses on gaining the attention of the youth, particularly those taking up the challenge of the IAS etc., competitive examinations. That purpose is best served by inserting Asides now and then for updating, discussing  current scenario and thus, placing things in perspective. We shall, therefore, come to Kesavananda Bharathi in the next round.

The print media is brimming today, like the Chennai lakes, with the torrent of words heaping praise on the Constitution of India -  tautological, rhetorical and and argumentative. It looks as though the ruling party spoke of the virgin Constitution  of 1950 and the Opposition spoke of the one, pockmarked by amendments galore! The Prime Minister did, in a conciliatory tone, make a point  about consensus being more important than majority rule;  he considered the Constitution holy and wished to assure the  underprivileged of the protection. Characteristically, he took up the cudgels against Indira Gandhi, who  had  suspended the Constitution and convinced a pliant Supreme Court that people had lost their right to life and liberty during the Emergency. My piece on the Emergency in Tamil ( The Electric Fence) is attached for those who can read Tamil. Arun Jaitley is stoking the fire of controversy on articles 13, 29, 30, 44 and 48 - rather unwisely! I shall now turn the heat on the spirited, redundant and politically tinged outpourings in the Law Day function on the Supreme Court lawns - the Attorney General of India missing out on 'secular’, foretelling of confusion if the Constitution is stretched beyond what it means ( that is the rub, though!), thus wearily trodding Rajnath’s astounding disclosure of Dr.B.R. Ambedkar’s intentions. The Congress party cried foul as they had planned to delve deep and deliver orations only on the Republic Day.

All this was followed by a cryptic comment by Chief Justice Dattu intoning,

"Final word of governance is not with us (judiciary). It is with the people.” .

Thereby hangs a  tale: Kesavanda Bharathi and a Pandora's Box

(contd)
-x-

Friday, November 27, 2015

THE CONSTITUTION OF INDIA [2]

THE CONSTITUTION OF INDIA
[2]

Innamburan
November 27, 2015
Constitutional Law

Aspirations of the Nations are reflected in their Constitution, written or unwritten. The moving finger writes  and goes on writing, in the Parliament, Courthouse and if I may say so, in the media and in the minds of the people. Judge-made Law is no less important than the lawfully enacted amendments. Lest it goes unnoticed, let it be asserted that unwritten principles  ( ‘SatyamEva JayathE’) are firmly implanted in the constitutional apparatus. In that welcome process, the original written document can be the torch-bearer or could, on the contrary, become the dark alley. The citizens’ shield is his acute awareness. As J.S.Mill put it, ‘ Vigilance is the price of Liberty’.

By way of illustration, we may consider the fate of the Article 368 and in particular, 368(4) and (5) of the Constitution of India, which read as under:
*
368. Power of Parliament to amend the Constitution and Procedure therefor:
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in –
(a) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
(3) Nothing in article 13 shall apply to any amendment made under this article.
  1. No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground.
  2. For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

Without getting bamboozled by the tortuous turn of the words in turmoil in those articles (and elsewhere too!), it can be safely asserted that they unambiguously  proclaim the over-arching power of Parliament to amend the Constitution. 
It is of interest to grasp what went on the minds of the framers of the Constitution.

B.R.Ambedkar speaking in the Constituent Assembly on 4 November 1948

"...It is said that this Constituent Assembly is not elected on adult suffrage while the future Parliament will be elected on adult suffrage and yet the former has been given the right to pass the Constitution by a simple majority while the latter has been denied the same right. It is paraded as one of the absurdities of the Draft Constitution. I must repudiate the charge because it is without foundation...One has only to study the provisions for amendment contained in the American and Australian Constitutions...The Constituent Assembly in making a Constitution has no partisan motive. Beyond securing a good and workable Constitution it has no axe to grind... Parliament will have an axe to grind.That explains why the Constituent Assembly though elected on limited franchise can be trusted to pass the Constitution by simple majority and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it."

Jawaharlal Nehru observed in the Constituent Assembly on 8 November 1948: 

"While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people. Therefore, it has to be flexible ... while we, who are assembled in this House, undoubtedly represent the people of India, nevertheless I thinks it can be said, and truthfully, that when a new House, by whatever name it goes, is elected in terms of this Constitution, and every adult in India has the right to vote - man and woman - the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that House elected so - under this Constitution of course it will have the right to do anything - should have an easy opportunity to make such changes as it wants to. But in any event, we should not make a Constitution, such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible ...".

Dr. P.S. Deshmukh believed that the amendment of the Constitution should be made easier as he felt there were contradictory provisions in some places which would be more and more apparent when the provisions were interpreted, and that the whole administration would suffer, if the amendment to the Constitution was not made easy. Brajeshwar Prasad also favoured a flexible Constitution so as to make it survive the test of time. He was of the opinion that rigidity tends to check progressive legislation or gradual innovation. On the other hand, H.V. Kamathfavoured ensuring procedural safeguards to avoid the possibility of hasty amendment to the Constitution.

H.V. Kamath was an astute and earnest Parliamentarian, who never minced his words. He called a spade a spade. We shall have many opportunities to listen to his famous articulations, later.

This part concludes by drawing attention to the case of Kesavananda Bharati v State of Kerala which upset the apple-cart! It is a curious case in the sense that Kesavananda Bharathi was clueless about the case in his name that was a milestone in the evolution of the Indian Democratic Entity.

[contd]
-x-

Thursday, November 26, 2015

THE CONSTITUTION OF INDIA [1]

THE CONSTITUTION OF INDIA
[1]

Innamburan
November 26, 2015

A callow youth of barely sixteen years on the day the Constitution of India was signed (November 26, 1949), I was earnest enough to follow the day to day proceedings of the Constituent Assembly assiduously, if not with absorption   I still remember some scribblings of mine in what we used to call, ‘the rough notebook’. One is expected to edit and copy the refined version in a fair copy notebook; the time could not be found. I am resuming that task sixty-five years later. A series of postings I contemplate; much depends on the feedback. Writing in perceived vacuum is a hurt.

I begin this series this day to celebrate the Anniversary of an event of everlasting National importance and also to congratulate Professor V.Nagarajan for commencing this Initiative, this day. Given the interlude of six decades and more, personal reminiscences will intervene, as witnessing the good, bad and ugly amendments to the Constitution was also my remit, as a concerned citizen. I begin the series with an Eulogy to a forgotten soul, followed by an irreverent flip side comment on the way the  Constitution failed the Nation.

The Eulogy 

I deliver an Eulogy, preferring that to a mere tribute; it looks as though we lost Sir Benegal Narsing Rau ICS (1887-1953) recently. Given the Nation’s immortality, this is no surprise. An eminent jurists of his time, he helped draft the constitutions of Burma in 1947 and India in 1950. B. N. Rau was not a member of the assembly but was, perhaps. the important kingpin in the framing of the Constitution. He was appointed as the Constitutional Adviser to the Constituent Assembly and was  responsible for the general structure of its democratic framework of the Constitution and prepared its original draft. The Constituent Assembly's resolution setting up the Drafting Committee, under the chairmanship of B. R. Ambedkar, declared that it was being set up to 

"Scrutinise the Draft of the text of the Constitution prepared by the Constitutional Adviser giving effect to the decisions taken already in the Assembly and including all matters ancillary thereto or which have to be provided in such a Constitution, and to submit to the Assembly for consideration the text of the Draft Constitution as revised by the Committee." 

There already was a Draft in existence when this Committee was set up. Dr.Rajendra Prasad, the President of the Constituent Assembly  before signing the Constitution on 26 November 1949, thanked Rau for having 

"worked honorarily all the time that he was here, assisting the assembly not only with his knowledge and erudition but also enabled the other members to perform their duties with thoroughness and intelligence by supplying them with the material on which they could work."  

This day is the Remembrance Day for B.N. Rau, the architect of our Constitution.

On the Flip-side

We have the Fundamental Rights and the Directive Principles enshrined in our Constitution. The latter is no less important for ensuring a Good Life to R.K.Lakshman’s citizen. But it is not enforceable. By relegating the right to Basic Education to one and all, this fundamental right to Life was compromised. Many generations lost out. The poor was let down. Perhaps, the well-meaning constitution fathers were from such an elite and educated community that they could not see the flip-side of the coin.
-x-
Image Credit: https://missionsharingknowledge.files.wordpress.com/2013/08/from-dominion-to-republic.jpg

Wednesday, November 25, 2015

நாளொரு பக்கம் 34

நாளொரு பக்கம் 34


Sunday, the 29th March 2015

सन्तप्तायसि संस्थितस्य पयसो नामापि न ज्ञायते
मुक्ताकारतया तदेव नलिनीपत्रस्थितं राजते ।
स्वात्यां सागरशुक्तिमध्यपतितं सन्मौक्तिकं जायते
प्रायेणोत्तममध्यमाधमदशा संसर्गतो जायते ॥

Saatveekam, Raajasam, Thaamasam are the three categories under which the people are labelled. All this depends on the company. A serene person can be turned into a hooligan by liquor. An upright and courageous householder may take to renunciation, as Lord Buddha did. The Prodigal Son may return to his father’s hearth, repenting his straying away into bad company. Many a permutation and combination of these three categories and sub-categeries are encountered daily by us.
The metaphor of water in this apt Subhashitham is non-pareil.  A drop of water on a hot iron evaporates so fast that you do not even get to see it. The same drop, well-rounded, shines beateously like a pearl on a lotus leaf. It turns into a genuine pearl indeed, if this tiny drop enters a seashell on the auspicious day of Svathi Nakshatra. 
-x-

இன்னம்பூரான்

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Tuesday, November 24, 2015

நாளொரு பக்கம் 33

நாளொரு பக்கம் 33

Saturday, the 28th March 2015

“...He would do anything for you, and he could make you do anything for him...”
- Professor CNR Rao on JRD Tata
Elegantly brief, this eulogy to Jeh ( as JRD Tatq is known in inner circles) is bereft of flattery, rings true and comes from a high dignitary, not given to hyperboles. The quintessential human in Jeh could not have done more or could not have asked for less.  This is a leadership quality and is also  a good neighborly attribute. For a role model, we do not have look elsewhere.
These sterling qualities come ‘made easy’ for us, thanks to Jeh’s life, as lived in. A chat with a lonesome widow, a good turn to a disabled guy, mentoring a student from a downtrodded community, a wee bit of charity, all are possible for most of us. And, there are countless other ways of reaching out to one in distress. CNRR’s tribute to Jeh implies an aspect of good governance, exemplified by the Hawthorne Experiment, which was a way of life with the Tata School of Life.
‘Caring begets duty unbound’ is the edifice on which it is built.
-x-