Prof. Satya Narayan Misra* in Bhubaneswar, November 27, 2024: In his magnificent survey of Working on Indian Constitution Granville Austin observes that it has three strands viz; the spirit of democracy, pursuing social revolution, and enhancing country’s unity & integrity except for the emergency years when the democratic spirit was defiled & judges superseded (1973 & 1977) for not being committed to the philosophy of the party in power, it has been a seamless web of the three strands.

Since the Supreme Court is the Custodian of the Indian Constitution and watchdog of fundamental rights, the 75 years gone by have witnessed lively spats between the party in power and the Court, particularly in four areas viz Parliamentary supremacy vs. judicial review, Rights vs Goals, the validity of reservation in entry to educational institutions and public employment and the contours of life, liberty, and reasonable restriction. These debates warrant serious reflection.

Mrs Indira Gandhi with her manifest socialist agenda was of the view that Parliament was supreme to amend any provision of the Constitution, being Vox populi. She introduced the 24th Amendment in 1971 to bolster the point. She again brought in the 42nd amendment in 1976 to snuff out the power of the Supreme Court to undertake judicial review of amendments.

In the oft-quoted Kesavananda Bharati Case (1973) the Court has allowed Parliament to amend, even the fundamental rights; with a caveat that it cannot delete or deface ‘basic structures’ like democracy, federalism, secularism, and independence of the judiciary. The Minerva Mills Case (1980) has reiterated that the Constitution and not the Parliament is supreme. It has seemingly also settled once and for all, that the Supreme Court’s power of judicial review is beyond political contestation.

The Champakam Dorairajan judgment in 1951 opined those fundamental rights, being justiciable will prevail over the directive principles, which are non-justiciable. This judgment was turned upside down when the court upheld 31C, which gave primacy to distributive justice over the right to equality and freedom. However, in the Minerva Mills Case (1980), the court looked upon the rights and goals as ‘two wheels of a chariot’ which must move harmoniously.

While judges in the past like Justice Krishna Iyer with strong leftist leanings bat for socio-economic justice trumping individual rights, the predominant viewpoint presently is to look at rights and goals in harmony. The quest for promoting social justice for socially and educationally backward classes and SC & ST received a fillip when reservation in promotion for SC & ST was mooted in 1995.

In the year 2019, the BJP government moved away from caste-based reservations to income-based reservations for EWS amongst the General Category. The Supreme Court has upheld all such amendments in the Constitution. Merit-based entry into educational institutions and government jobs has been held hostage to caste consideration for SC, ST, and OBC and income for the General category.

The record of the Supreme Court in expanding the panoply of right to life and checkmating the government’s power to checkmate freedom of expression under the shenanigan of ‘reasonable restriction ‘is rather edifying. Thanks to the Unnikrishnan judgment (1993), the right to school education for children in the age group of 6-14 has become a fundamental right.

The Supreme Court in the Olga Tellis Case has also recognized that the right to livelihood is a right to life. In MC Mehta Case (1986), the Court recognized the right to clean air as a right to life. Similarly, in the Shreya Singhal Case (2015), the SC struck down S66A of the IT Act as it arbitrarily restricted freedom of expression in social media.

The Vishaka Rani is another landmark judgment where sexual harassment of women in the workplace was severely frowned upon. The laws on rape have been made more stringent, thanks to this judgment. The sections on adultery (S497 of IPC) and sex among homosexuals considered a criminal offense under S377 of IPC have been struck down by the Supreme Court. However, the Court could not walk the extra mile in legalizing same-sex marriage.

A National Commission to Review the Working of the Constitution in 2002 recommended freedom of the press as a fundamental right, right against torture and compensation if a person is illegally deprived of his right to life, right to education to include Early Childhood Education, the constitution of a National Judicial Commission to recommend the appointment of judges. The South African Constitution (1996) has become a template of inclusive growth & development by recognizing the right to housing, and a healthy environment as fundamental rights.

These are all wish lists for our Constitution to be more empathetic and inclusive. Andre Beteille, the famous sociologist, wrote: A constitution may indicate the direction in which we are to move, but the social structure will decide how far we move and at what pace. Given the plethora of reservations that the government provides in terms of employment opportunities, and increasing clamor for caste-based reservation, the basic principle of competition and merit in a market-driven society has become hostage to politics of opportunism.

Many believe that there is a gap between the vision of emancipation that the Constitution promises and the reality of violence that the law performs. Prof Sirkar writes: We wanted the music of the veena or sitar but we have the music of an English band. Besides, India today is witness to a strange paradox, where the Constitution swears by socialism and the economic system by free market capitalism.

As Abhijit Banerjee and Piketty have brought in their survey of India’s elections from 1962 -2014, it is won more based on caste and religion consideration rather than on ‘tangible material benefits and class-based redistribution of income’. Apostles of the free market economy like Ruchir Sharma believe that economic freedom still eludes the Indians. Little realizing that economic freedom ‘for the wolves has often meant death to the sheep ‘as observed by Isiah Berlin.

The biggest challenge before India is how to eliminate inequalities in opportunities in terms of access to quality school education, affordable health care, adequate nutrition, skilling, and technology. The people at large, a free press, and the political parties can only ensure this discourse is realizable for our Constitution @76.

*The author is Emeritus Professor