In this 73rd year of our Republic, dissonant voices have emanated from the highest quarters, jarring against our freedom, our Constitution and our Republic.
The first salvo was fired by the Prime Minister, when he said that Indians have been busy “talking about rights, fighting for rights and wasting time.” This was followed by the President, who expressed the same sentiment, toning down its harshness, by stating that fundamental duties stand on equal footing as fundamental rights.
Nothing can be farther from the truth.
From the revolt of 1857, for almost 90 years, millions of Indians participated in the many wars and the many mass movements in the struggle for our independence. The Swadeshi and Boycott Resolution (1905), Home Rule Movement (1916), Champaran Satyagraha (1917), Kheda Satyagraha, Rowlatt Act Satyagraha (1919), Non-cooperation Movement (1920), Civil Disobedience Movement (1930), Netaji Subhash Chandra Bose’s war of Independence from the East, Quit India Movement (1942) and the many others involved the masses fighting for their rights and human dignities at great personal cost of deprivation of liberty and even at the pain of incarceration and death.
On January 26, 1950, the people of India, who were then 360.10 million in number, of which 23% lived under 565 princely kingdoms, who spoke over 19,500 mother tongues, espoused 7 different major faiths, belonged to myriad castes, cultures and creeds would in one stroke declare themselves as a free people. ‘WE THE PEOPLE’ would discard the old world of monarchies and dominion status, by declaring India to be a “SOVEREIGN DEMOCRATIC REPUBLIC”. Most importantly, they would strike at the traditional feudal hierarchies to confer upon themselves concrete rights summed up in the Preamble as ‘JUSTICE, LIBERTY, EQUITY AND FRATERNITY’.
The very opening lines, “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India....” has a resonance, and a relevant historical origin. Prof Shibban Lal Saksena had rightly pleaded “if we do not say here that the source and the fountain of all authority is the people, the theory that kings have got divine rights will continue.” So, despite the fact that the Constitution was drafted by the Constituent Assembly, which in itself was elected by elected members of the Provincial Assemblies (389 members, subsequently reduced to 299 after the Partition of India), the Constitution was categoric in assertion of authorship by “We the People.”
It was this relentless fight for our rights and human dignities for almost 10 decades that won us our freedom. Having won it, Sir S Radhakrishnan emphasized on securing it forever. “We must safeguard the liberty of the human spirit against the encroachments of the State. While State regulation is necessary to improve economic conditions, it should not be done at the expense of the human spirit,” he said. So, we had Part III of the Constitution elucidating each fundamental right in meticulous detail.
Most importantly, these rights and liberties were to be made enforceable so that citizens could demand and enforce their rights at will. Prof NG Ranga reminded the Constituent Assembly that the charters of fundamental rights in many countries were a dead letter. He, therefore, exhorted, “therefore we will have to stipulate certain provisions in our Constitution, by which it will be possible for our masses to invoke the aid of the law as against the State, as against the government and its incumbents from time to time in order to see that these fundamental rights are actually enforced.” Thus came about the striking innovation in the form of Article 32 (in addition to various remedies) which made the right to move the Supreme Court for enforcement of fundamental rights itself a fundamental right.
The right of the citizens to fight for their fundamental rights (some rights bestowed on non-citizens as well) is the deliberate design incorporated into the grand architecture of the Constitution and no citizen owes an apology for exercising it.
Extensive developments in the field of individual and community rights won appreciation of judiciaries across the globe. In the golden age of India’s independent judiciary, Amartya Sen and Jean Dreze in their remarkable book ‘An Uncertain Glory: India and Its Contradictions, 2013’ invited this well-deserved encomium:
“And the independence of the judiciary has also allowed the courts, particularly the Supreme Court of India, to take independent – and powerful positions on many of the central issues of equity and justice in their judgement, including the protection of fundamental rights as well as of various economic and social rights defined in the directive principles of the Constitution, such as the right to education and the right to food.”
This expansive vision of enforceable rights is a far cry from the constitutional coma which we are in today. Several eminent journalists, academics, students and others are languishing in India’s jails with little hope for reprieve.
In this hour of grave constitutional crisis, it is time to remember that it is our demand for rights that got us our independence from foreign dominion, a free Constitution and a secure Republic. If at all this Republic has to live up to the expectations of the Constitution and its founders, it can be achieved only by people demanding their constitutional rights which they conferred upon themselves and established the mechanisms for their enforcement.
There is an interesting parable from the Mahabharata that Dr Rajendra Prasad told the Constituent Assembly after his election as President of India. He recounted how Arjun had taken a vow that if he could not perform certain things before sunset, he would immolate himself. Unfortunately, he could not complete his tasks, and he was adamant in his resolve. Lord Krishna stepped in to prevent this self inflicted tragedy by saying, “if you sit and praise yourself or listen to praise by others, that would be equivalent to committing suicide and burning yourself; so you had better submit to that and your vow will be fulfilled.”
Through this brilliant allegory, Dr Prasad was warning the elected members not to destroy themselves through self-praise and flattery by their peers. For they had a larger purpose in hand post-independence and post our Constitution, namely to serve the people, which included securing the citizens their rights.
Santosh Paul is a Senior Advocate practicing at the Supreme Court of India.