Part III of Constitution of India alias Bamiyan Buddhas

Bar & Bench August 3 2019

Shanmugham D Jayan

Even a non-legal mind traversing the initial pages of the Constitution of India will be captivated by the beauty of structuring of Part III of the said document. The same is arranged perfectly even excelling Gaston Bachelard's thoughts with respect to efficient utilization of space. Part III of the Indian Constitution is a grandiose introduction to what is in the offing by that unparalleled legal magnum opus.

Even though it spreads from Articles 12 to 35 taking within its span twenty-seven Articles to date, this is an attempt to demonstrate the beauty of the structure of the initial portion of the original version of Part III. Hence, this discussion is confined to Articles 12 to 21, that is the first ten Articles of Part III of the Indian Constitution

Article 12 discusses the concept of State and defines the same in various contexts. The scope of this definition has been subject to multiple judicial considerations and has taken a zigzag pattern. Nevertheless, succinctly put, it is still the definition of ‘State’. The State is nothing but the starting point of the journey of a system to form its legal system.

Then comes Article 13, which determines the scope of the term ‘law. '

In contrast to Article 12, Article 13 blows hot and cold at the same time. It conveys the idea of law or rather what is law. It also states what is not law. Reading together Articles 12 and 13, one can find a precise embodiment of the two main aspects of a legal framework - the concept of State and the concept of law. Both are supplementing and complementing each other.

Original Constitution that was hand written. Article 12 and 13 in Pat III, Fundamental Rights

The State is perceived by the State's action, and the State's action is nothing but the law. The terms ‘law' and 'laws in force' referred in Article 13 are determining State action which can have a result identical to that of operation of the law. Once this inseparable duality is detailed, drafters have completed a primary task.

Next comes equality, something for which the entire modern world is indebted to the Greek trinity and imbibing it is a must for any legal system.

Article 14, which typifies legal drafting brilliance, accomplishes this. Equality as well as rule of law are intertwined inseparably and is ordained to be a requirement of any legislation.

Strictly speaking, Articles 15 to 18 are nothing but specific prescriptions of the concept manifested in Article 14. This might have been included as an abundant caution owing to socioeconomic and historical factors. Nevertheless, the said four Articles are drafted well and is never disturbing the envisaged structure. Here also, judicial interpretations have been dwindling.

Then comes Article 19. The same zeroes in on personality (not person but personality). Before touching the person, there is a need for identifying personality and Article 19 excels in that.

Clause (1) of Article 19 confers on the subjects, right to freedoms through seven sub-Clauses. The arrangement of these sub-Clauses is exemplary. Sub-Clause (a) protects speech and expression and then the subsequent one permits subjects to assemble peacefully. By way of sub-Clause (c) the assembly can take the formal shape of an association. Sub-clause (d) grants the liberty to move freely, and it takes you to sub-Clause (e) wherein it is said that one is free to reside and settle.

Once settled, the next necessity is materialistic, and right to property is protected under sub-Clause (f).  Anchoring on these elements, the system offers a means of living by sub-Clause (g). This detailing in multiple phases in Clause (1) of 19 is a gradual progression of elements which are the attributes determining personality.

The internal brilliance of Article 19 does not end with this. Clause (1) guarantees all these rights and as long as one does not traverse beyond a limit, one never comes across the restrictions.

The restrictive aspects from Clause (2) onwards takes care of that. In a nutshell, as long as one does not transcend the freedoms, one never realises the fact that they are restricted.  As long as the periphery is not crossed, one can enjoy real freedom because the periphery of the freedoms is fixed by restrictions which are included subsequent to grant of freedoms.

Article 20 discusses the scope of personality and the same is comprised of the three cardinal principles of criminal law - ex post facto law, rule against self-incrimination and rule of double jeopardy.

The aim of criminal law is nothing but incarceration. So this is a clear indication that what comes after this is the attempt to catch hold of the body of person, because the scope of personality is already discussed and when the mention is of larger principles of criminal law, it is certain that this part which grants certain rights that are protected at the crescendo, lays down the conditions for containing body of the person itself.

Article 21 mentions that life and personal liberty can be curtailed only by a procedure established by law. It is to be noted that Article 21 does not prescribe qualification for such a law and mandates the need of law alone. Definitely, such a law needs to satisfy the Constitutional mandates enshrined in Articles 14, 20, 22 etc and any law which contravenes the mandates should be considered to be failing the test under the same and not under Article 21.

Bamiyan Buddhas were two gigantic awe-inspiring statues and were of historical, cultural, and archaeological importance. However, the statues are no more.

One who glances through Constituent Assembly Debates can quickly identify the specific intent of the draftsmen for each provision.

However, many judgments of the Supreme Court are directly in contradiction to the same. On specific issues, judgments generate a zigzag pattern. This milieu has also resulted in certain forced amendments. This tussle between judiciary and Parliament over Part III distorted the original structure of the same, and that grandiose is non-est, so are Bamiyan Buddhas. The lines of Bijay Kant Dubey is relevant in this context:

But the Buddhas silent, all silent,

The cliff-hewn and chiseled Buddhas,

Sculpted out of tall rocks,

Archaeological, architectural and archival

But they in their aggressive mood of their own.”

Shanmugham D Jayan is a visiting faculty at Cochin University. He teaches Constitutional Law, Jurisprudence, IT Law and Law of Taxation. He is also a lawyer specialising in taxation and frequents courts and authorities of first instance.

This is the first article of a two-part series.

Image taken from here