Reporter’s Diary: The Indianness and Wisdom of the Constitution

Speeches made by high dignitaries at the function held last month to celebrate Constitution Day make one wonder whether we look at it more in terms of an event, than an occasion for serious reflection on the road traversed so far, and the one ahead of us.

Chief Justice of India Ranjan Gogoi’s inaugural address is a testimony to its relevance, despite the passage of time. The CJI left unexplained, perhaps for the sake of brevity, why and how the adverse circumstances of the birth of the Constitution influenced its philosophy.

To him, the Constitution “has lived with great vigour in the last seven decades”.

He went on to quote the famous words of a member of the Constituent Assembly, who said:

“We wanted the music of veena or sitar, but here we have the music of an English band.”

These words were uttered by Kengal Hanumanthaiah, on November 17, 1949. Hanumanthaiah was a member of the Indian Constituent Assembly representing the Province of Mysore on a Congress Party ticket. In the Constituent Assembly, he made interventions on the issue of federalism; he advocated for greater autonomy for States. He also supported a Parliamentary system of government and wanted the President to be indirectly elected and not through adult franchise.

After his term in the Constituent Assembly, Hanumanthaiah became the second Chief Minister of Karnataka in 1952. One of his major contributions to the State was the construction of the Vidhana Soudha, the seat of the Karnataka legislature. He also served in the Central Government as Law and Social Welfare Minister (1970) and Railway Minister (1972).

In his address, the CJI observed that time has proven the member wrong, as his experience has shown him that the Constitution, despite its foreign origins, is best suited to the Indian context.

CJI’s disagreement with Hanumanthaiah explained

In his speech, the CJI took his disagreement with Hanumanthaiah further.

The Constitution, the CJI added, has become an integral part of the life of the Indian people.

“This is not an exaggeration; one need only look at the astounding variety of issues that courts hear daily. Our Constitution is the voice of the marginalised as well as the prudence of the majority. Its wisdom continues to guide us in moment of crisis and stability. It is in our best interests to heed its advice; if we do not, our hubris will result in a sharp descent into chaos.”

The CJI may well be correct in his understanding that Hanumanthaiah was disappointed about the lack of indigeneity in the Indian Constitution.  As the CJI himself noted in his address, a Constitution written by Indians for Indians was a key demand of the freedom struggle. This, by itself, does not rule out that there could be worthy features in foreign Constitutions which Indians could adopt for themselves. How, then, does one understand Hanumanthaiah’s opposition to things foreign?

Hanumanthaiah wanted to raise a monumental structure in the Dravidian style to counter the colonial remnants in Mysore. He even sought to demolish the Karnataka High Court (also known as “Attara Kacheri”) for representing the colonial vestige in India, but he was denied the requisite permission. He instructed that the architectural style of the Vidhana Soudha, located opposite the High Court, be Indian.

Constituent Assembly Debates, the search engine created by the Centre for Law and Policy Research, has this to say, quoting historian Janaki Nair:

“It was the view that India’s encounter with colonialism was a “humiliation” rather than an ‘oppression’ or ‘domination’ that heavily influenced architecture in post-independence Mysore.”

As per Nair’s account, Russian delegates on their visit to Bangalore asked Hanumanthaiah, “Have you no architecture of your own? They are all European buildings”. This could have been another motivation for having an indigenous-styled seat of the legislature in Karnataka.

While the CJI was indeed correct in believing that Hanumanthaiah was disappointed about the lack of indigeneity in the Indian Constitution, he was perhaps wrong in also assuming that Hanumanthaiah – or anyone else of his generation sharing concerns about foreign influence in the Indian Constitution – thought this lacuna would make the Constitution incapable of “becoming an integral part of the life of the Indian people”.

In other words, the lack of indigeneity in the text of the Indian Constitution was more than made up by the Indianness of the constitutional culture which supports the working of the Indian Constitution, and also explains its resilience despite several odds.

Contemporary aberrations

CJI Gogoi’s reference to “the astounding variety of issues that courts hear daily” is a reflection that the Constitution is an integral part of the life of the Indian people. But the equally astounding variety of issues that the courts refuse to hear daily, in the form of dismissals of various public interest litigation (PIL) petitions raising significant issues of concern to the country, may widen the gap between Constitution’s promise and performance.

The latest dismissal of the writ petitions seeking an impartial probe into the Rafale deal between India and France may well buttress this view.

According to the CJI, the wisdom of the Constitution continues to guide us in moments of crisis and stability, and that it is in our best interests to heed its advice; if we do not, our hubris will result in a sharp descent into chaos.

The CJI’s cautionary words indeed deserve to be taken seriously. But on closer analysis, one may wonder what constitutes the “wisdom” of the Constitution. The controversy over the correctness of the Supreme Court’s decision granting the right of women of all ages to worship at the Sabarimala temple is one such instance.

It is because there is profound disagreement among the litigants on this question, that courts are called upon to hear rival arguments involving great complexity for days together, and arrive at what appears to them as a fair decision. Unless one knows clearly what is the “advice” of the Constitution – which is seemingly amenable to a variety of reasonable interpretations by the courts at all levels, with even final decisions capable of being reviewed by Constitutional courts due to changes in circumstances – can one be accused of hubris, if he or she doubts such “advice” as being valid for all times and situations?

A two-judge bench of the Supreme Court had in 2013 interpreted the advice of the Constitution to reject the plea to read down Section 377 of the Indian Penal Code to guarantee sexual autonomy to a section of the population. In 2018, a larger bench of the Court overruled it by reading the advice of the Constitution differently. Therefore, the CJI’s prognosis of the Constitution’s advice not being heeded must be understood with the nuance it requires.