It was pleasure to be part of the Constitution day function on 26th November, 2019 at Ahmadabad, jointly organised by Gujarat High Court and the Gujarat Government.
Here is the text of speech given on that occasion. Due to shortage of time, a part of the same was not spoken and part of it was spoken in Hindi, out of respect of the Governor, who is a Hindi lover. The Governor also has great command over Sanskrit as well as very good knowledge of Vedas and Purans.
Here is the text of speech given on that occasion. Due to shortage of time, a part of the same was not spoken and part of it was spoken in Hindi, out of respect of the Governor, who is a Hindi lover. The Governor also has great command over Sanskrit as well as very good knowledge of Vedas and Purans.
Hon’ble Sri Acharya Devvrat ji, Governor of the State, ladies and gentleman
Namaste and a very good evening to all of you.
On this day, seventy years ago (26th November 1949), our constitution was adopted by the constituent assembly and since then, it was celebrated as the National Law Day or just Law day. But on 125th birth anniversary of Babasaheb Ambedkar, on 19th November 2015, in recognition of his contribution to building modern India, it was rechristened as the Constitution Day to promote constitutional values among citizens.
Granville Austin (1927 – 6 July 2014) was an American historian. He earned a doctorate in Modern Indian History from Oxford University. He has written three books and two of them are on our Constitution. In recognition of his work, he was awarded Padma Shri in 2011. His first book, ‘The Indian Constitution: Cornerstone of a Nation (1966)’, documents framing of our Constitution. It has been translated into Hindi and other Indian languages. His second book, ‘Working A Democratic Constitution: The Indian Experience (1999)’ is history of our Constitution from 1950 to 1985 captured through important constitutional cases. Both of them are classic; worth their money; and time for reading them. His third book ‘Retrieving Times’ is his memoir of his childhood town. Today’s talk and its title is inspired by his second book. Like the book, it should have been in the chronological order but I decided to talk about the Kalyan Singh Case first, as your chief justice was actively involved in the same.
In the late 1990s, Kalyan Singh was the Chief Minister and Romesh Bhandari was Governor of UP. In the afternoon of 21st February 1998, he was dismissed by the Governor on the ground that he had lost the confidence of the house, without affording opportunity of holding the floor test and Jagdambika Pal was to be sworn in as the Chief Minister later in the evening. It was a Saturday but the High Court was open on that day. At that time, we were in the court. When I came back in the evening, I was asked if something can be done.
In SR Bommai Vs Union of India 1994 (2) SCR 644: AIR 1994 SC 1918: 1994 (3) SCC 1 (the SR-Bommai case), the majority had held that the question whether the Chief Minister had lost the confidence of the House is to be determined by the House and not by the Governor. There was no interim order and by the time case was decided, the term was over and no relief was granted. It was important to get interim order against dismissal of Kalyan Singh but the question was, could we file a writ petition before Jagdampika Pal took oath - time was short; would we get an interim order.
On the earlier occasion, there was recommendation to dismiss the Kalyan Singh government and I was asked to appear in the case in Lucknow. Chief Justice was junior in my father’s chamber and was my colleague. In Octobber 1997, IK Gujral’s government had recommended President’s rule in UP and we had travelled in the night intervening 21-22 October 1997, to Lucknow to argue a petition. We had read the SR-Bommai case in the torch light on our way but the petition became infructuous as KR Naraynan had returned the recommendation for reconsideration and central government did not pursue it.
We again got together and discussed the matter. Your chief justice can type well (I see many students here. I strongly recommend that they should learn typing. This comes handy to use computers). I called him over. He quickly typed the writ petition on the computer. After the petition was ready, we reached the house of the Acting Chief Justice around 8:00pm for nomination of the bench. He was having his dinner. At about 8:30 pm, he entertained us and we informed him the developments. He, after talking to the judges, nominated the bench around 9pm. We reached the residence of the senior judge, where matter was to be heard. The case was taken up at 9:40pm in the drawing room. After hearing us, the judges asked us to go out, so that they may discuss and pass orders.
The lawyers and newsmen thronged the place: the news of filing of the writ petition had spread. However, before any order could be passed, the Counsel for Jagdambika Pal also appeared at 11:30pm and requested that he should be heard. The bench heard us again. He informed the bench that the new Chief Minister took oath around 10:20pm. We took a sigh of relief. He was sworn after our wit petition was filed. He mainly requested for time to produce the record to justify the action of the Governor.
The next day had begun. The Judges again requested us to go out and at about 1:45am, we were informed of the order: one of the judges was inclined to pass interim order but as the other judge wanted to give time, the case was ordered to be taken up at 9am on the same day namely 22nd February. It was Sunday and this was the first time the Allahabad High Court sat on a Sunday.
The case started in Court number 36. It was the same court, where Mrs. Gandhi was unseated; though at that time, it was numbered differently. We thought it was good omen: it is courtroom, where history was made and may be made again.
The basic argument of the other side was,
'It is war. The Court should not enter into a political thicket'.They wanted to delay as Jagdambika Pal was to prove his majority by 24th February. The case was heard on 22nd till 6pm and then again on 23rd till lunch. The bench retired and assembled at 3:30pm to pronounce the order. The court stayed the operation of the order dismissing the Kalyan Singh Government and restored the status before it was passed.
We were taken on the state plane to Delhi but were not permitted to land on the excuse that ice was being formed and it was dangerous to land. We went to Lucknow and again to Delhi on 24th morning. We were lucky that the bench of the Supreme Court was not formed on 23rd night as the fate of the case depended on a letter given by Kalyan Singh to the Governor stating that he had the majority. It was known to us but not to our lawyers in Delhi.
The case was taken up on 24th. The court did not stay the order of the High Court but ordered for composite floor test on 26th February to see, who had the majority in the House. Kalyan Singh proved his majority The case was finally decided on 27th February. BJP completed the term though Kalyan Singh was changed as the chief Minister.
The case had other consequences. Twelfth Lok Sabha elections were also being held at the same time. Because of the order of the High court, there was 2.5% swing in favour of BJP. It became the largest party and NDA formed the government in the centre and Atal Bihari Bachpai became the Prime Minister for the second time. As soon as NDA was invited to form the government, Romesh Bhandari resigned as the Governor of UP. The government lasted for 13 months and in 1999, 13th Lok Sabha elections were held and NDA again formed the government and completed its full term.
It was a case, where new records were established: it was decided within a week (Six days); the case was partly argued in the night; the Court opened on Sunday; a composite floor test was conducted; and it was the first case ever, anywhere in the world, when a deposed head of a state was reinstated by the court order. And with that, alongwith the judges, we also entered into record books.
Framers of our Constitution envisaged a document with checks and balances of power. The case not only proved their vision right but also established that the Governor has no unfettered discretion and his decision in dismissing or choosing a chief minister is subject to judicial scrutiny. The case paved a way for successfully challenging such orders. It also showed the importance of use of new technologies and time management: without computers, the petition could not be typed and corrected; without Fax machine all information could not be received; and without mobile phones we could not have saved time. We could do as we were fully equipped.
The case had some other interesting facts. There were many counsel from the other side but the important counsel, now a judge of the Supreme Court (Justice Vineet Saran), was also a junior in my father’s chamber though at the time, when the case was argued, he had set up an independent practise. So essentially, the case was fought in the High Court through juniors of the same chamber.
Your chief justice was mobile savvy but I wasn’t. He had the mobile phone, I didn’t. He was the one, who was getting all information and coordinating everything. Had he not been on board, we couldn’t have filed the petition or get the order.
There was some envy on my part as well. He was also getting the calls from news channels as well; getting all the limelight and importance. And the first thing that I did after the case was over, was to purchase a mobile phone. But such occasion never arose: one doesn’t get a chance to be part of history twice.
Let me go back to the darkest but constitutionally important period of our democracy namely - the Internal emergency.
I passed out law in 1973; practised for a year at Banda, a year at Kanpur then shifted to Allahabad during summers of 1975. It was the time, when Mrs. Gandhi imposed internal emergency. Immediately, thereafter my father VKS Chaudhary was arrested under Defence of India Rules (DIR). He was granted bail but before he could come out, he was detained under Maintenance of Internal Security Act (MISA). It was a difficult time for us as well as for the nation. No one would meet or talk to us for the fear that they might be arrested. It was dark and gloomy; we had little hope.
We filed habeas corpus petition for my father’s release. The State raised preliminary objection that - in view of suspension of right to move court for enforcement of Articles 14, 19, 21, and 22 - the habeas corpus petition was not maintainable. This question was referred to a larger bench and was decided in our favour by majority of four is to one. It was encouraging and good sign and the one judgement by the Chief Justice KB Asthana was special.
He wrote his judgement in Hindi. He wanted the common man to have faith in judiciary and they should not loose hope. His judgement was full of rhetoric and reminded of Lord Atkin’s dissent in Liversidge Vs Anderson 1941 (2) All ER 330. The following part was the most talked about during emergency:
"विद्वान महा अधिवक्ता ने अपने वक्तव्व में यह कहा कि अब दैहिक स्वाधीनता के अधिकार पर ग्रहण लग गया है, जिसका तात्पर्य यह होता है कि इस अन्धकारमय वातावरण में कार्यपालिका को पूरी क्षमता और सत्ता प्राप्त है कि वह मनमानी करे यानी ऐसे वातावरण में जो अन्धकारमय है, हिटलर के भूत का दौर-दौरा रहेगा और नागरिकों के प्राणों से अथवा उनकी दैहिक स्वाधीनता मान और मर्यादा से यह भूत आंख-मिचैनी खेले और उनको भयभीत करें। ऐसा विचार तो कभी राष्ट्रपति के मस्तिष्क में भी न रहा होगा, जब उन्होंने आपात की उद्घोशणा-प्रवर्तन में 26 जून, 1975 को आदेश दिया कि अनुच्छेद 14, 21 व 22 के प्रचालन के अधिकार से न्यायालय को वंचित किया जाये।”
The line हिटलर का भूत आंख मिचौनी खेलेगा became the talking point during emergency.
Apart from the Allahabad High Court, eight other High Courts (Total nine) held that habeas corpus petitions were maintainable. To the credit of Gujrat government, it always maintained that habeas Corpus was maintainable and any illegal action/ order could always be challenged in the court. The State filed appeals against these orders. These appeals were consolidated and unfortunately, were allowed in ADM, Jabalpur Vs. Shiva Kant Shukla (AIR 1976 SC 1207= 1976 (2) SCC 521) (the Habeas-Corpus case) (Many amendments in the Constitution, carried out during emergency, were done away with by the 44th Constitutional amendments after Janta party came to power in 1977. It specifically provided that right to move to the court for enforcement of Article 20 and 21 cannot be suspended under Article 359).
During emergency, people were arrested under DIR. Sub clause (b) of rule 194 {1949(b)} of the DIR provided that if there was a contravention of the rules or the orders made thereunder and in case prosecution opposes the bail application, then bail may not be granted unless the Court has reason to believe that the accused was not guilty of such contravention.
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| My Father VKS Chaudhary was released when Mrs. Gandhi lost her election. This photograph was taken immediately after he was released from jail and was being brought to the house on a Jeep. |
During emergency, there were other cases; Professors, teachers, workers were detained in jail, stripped off their jobs, and were denied their salaries or their subsistence allowance. They were entitled to 'A' class in jail but were not so given. The High Courts granted relief to them. The families would have starved but for the orders. Emergency was the golden period for the High Courts but same may not be said about the Supreme Court. There was another case that I remember well; in a way, it was also related to the emergency.
In 1982, a young man by the name of U Ram Krishanay came to me. He was from Andhra Pradesh; he was brilliant and passed all his examinations in first class. He was a college student during emergency. There was a protest march in Maharashtra against emergency, he had carried a placard on his back, 'Indira Gandhi Murdabad' and 'Down with Emergency'. He was arrested and produced before the Magistrate, where he accepted that he had carried such a placard. He was convicted under DIR and sentenced to the period undergone. He was released. He did not file any appeal. His conviction stood.
He studied at the IIT Kanpur, qualified for Indian Geological Service and Oil and Natural Gas Corporation (ONGC) but preferred ONGC. At the time of joining, he wrote in the form that he was arrested but was released. As a normal practise, his character verification was sought for from the Collector of his home district. Had the young man not mentioned anything, no one could know about the incident; as it happened in another State. But the young man was honest. He mentioned everything. The Collector sent a report that character of the boy was good but he was convicted under DIR.
ONGC ignored the report of the Collector and terminated his service on the ground that he was convicted under DIR for protesting against emergency. This was the time when the Janata party had lost and Indira Gandhi was the Prime Minister.
A writ petition (WP 5097 of 1982) was filed challenging his termination order. The bench granted interim order, staying the termination. But after lunch, a mention was made that the order would not be respected on the pretext that the termination order was already given effect to. On this mention, the senior judge took back the file and by his own hand writing, an unusual gesture, wrote that in case the termination order has been given effect then the boy shall be taken back in service forthwith. The order was confirmed. But despite this, ONGC did not take him back in service.
ONGC filed an appeal before the Supreme Court but ultimately took him back in service on the suggestion of the Supreme Court. Had the court not modified the interim order to take the young man back in service, he would have languished. It saved his life.
It is an old legal maxim that ‘hard cases make bad law’. In the beginning of the last Century, Justice Holmes, the most famous judge in the English speaking world, made use of it in Northern Securities Vs US 193 US 197, when he observed that
‘Great cases like hard cases make bad law’.
(There are many books and biographies written on Justice Holmes but if you wish to read one biography then ‘Oliver Wendell Holmes: Sage of the Supreme Court’ by G Edward White is the one to read. And if you wish to read about his writings and important judgement then read ‘The Essential Holmes’ edited by Richard A Posner).
Ronald Dworkin (December 11, 1931 – February 14, 2013) is the greatest jurist of the modern times. His importance can be realised from the fact that a few years ago Georgia Law Review invited articles on jurisprudence for a special issue. To their surprise they found that every article received addressed the views of Dworkin. He modified the maxim to
‘Hard cases make great judges'.During emergency, the judges of the High Court and Justice Khanna of the Supreme Court validated it. And four judges of the Supreme Court, who held against citizens - validated Gerald Aungier (1640 – 30 June 1677).
Aungier was the 2nd Governor of Bombay but practically its first. Bombay was given as part of dowry to British in 1661, when their princess Catherine was married to King Charles-II: they never understood Bombay’s importance. Local Portuguese authorities understood it and delayed handing over possession; they even wrote against it. But ultimately had to relent and possession was handed over in 1668 during Aungier governorship. While inaugurating the first British Court of Justice in Bombay as well as in India on 08-08-1672, he said
‘Laws though in themselves never so wise and pious are but a dead letter and of little force except there be a due and impartial execution of them’. (The Common Law in India by M.C. Setalvad page 43).
The four judges of the Supreme Court, made the constitution a dead letter and of little force. The important point is that laws by themselves are neither good nor bad except due execution of them. Generally, its their execution that makes them good or bad. It is for this reason that normally procedural safeguards are required to be strictly followed.
Constitution should never be a dead letter. This is the purpose of this day and success of today’s celebration is to ensure that it never happens. But what should we do to ensure it.
Judge Learned Hand (January 27, 1872 – August 18, 1961) was an American judge and judicial philosopher. He was one of the most influential judges in America. It was a misfortune of US Supreme Court that he was never elevated there. He is quoted more often by legal scholars and by US Supreme Court than any other lower-court judge. He once said,
'Liberty lies in the heart ... when it dies there, no constitution, no law, no court can save it ... While it lies there, it needs no constitution, no law, no court to save it.'
(If you wish to know more about him then ‘Learned Hand: The Man and the Judge’ by Gerald Gunther is his worth reading biography.)
Our core Constitutional values are:
- Social, economic and political Justice;
- Liberty of thought and expression;
- Liberty of belief, faith and worship with secularism as essential part;
- Equality of status and opportunity. This includes fairness in state action as necessary ingredient;
- Dignity of the individual;
- Duties owed by citizens towards the nation, nature and children;
- Unity and integrity of the National;
- Democratic and republic character of our constitution;
- Rule of law.
Substitute these constitutional values in the quote for the word 'liberty'. It is still valid. On this solemn day, imbibe these values; cherish them; keep them close to your heart and the constitution will never be a dead letter and we will be able to sing
'जहां डाल, डाल पर,
सोने की चिड़ियां के साथ
न्याय की चिड़ियां करती हैं बसेरा,
वो भारत देश है मेरा।'
Jai Bharti, Jai Hind
Here is video of that speech. There is some problem with the format. In some mobiles and Linux laptops, sound is not audible but can be heard only through earphones.
Vry True.
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