Respect The Constitution

The Swatantra Party's most important stand is its determination to restore the Constitution to its original shape and to see to its being respected in spirit and letter.

The people gave unto themselves a government by this Constitution. But did they give all power to the government? The Constitution is a limiting as well as an empowering instrument, just as the American or Irish Constitution has been described to be by the highest authorities in Constitutional law. The Constitution of India gave to the government to be constituted under it, not all powers but only some powers. It laid on the National and State governments a number of important prohibitions. These prohibitions are an integral part of the Constitution, nay, of democracy itself. They must be fully and loyally accepted and enforced, not merely paid lip-homage.

Part of the Constitution is mere exhortation, but the rest is law. And when there is a law it subjects the interpretation of it and the exercise of powers as well as the limitations and prohibitions under it to the scrutiny and final decision of courts. This third element in the Constitution, which is the judiciary’s supremacy in its field, is as important as the other elements in the constitutional structure. The prohibitions and limitations of the powers granted to government are contained in what has been called the ‘articles’ relating to fundamental rights. The seemingly absolute powers given to government are limited by these fundamental rights by which certain rights are given to every individual citizen of the Union. No more is the government sovereign than the citizen is. Each is bound by certain limitations. And these frontiers of power are to be adjudged by the courts wherever necessary and whenever called upon by a citizen or the government. This is democracy and not any other thing.

Party governments come into existence through the electoral machine. Not so the courts. Judges are to be appointed on the basis of qualifications, whereas the electoral device works entirely on a basis of the choice of the people under adult suffrage.

The appointment of judges on merit and the control of the procedure in this respect by the Supreme Court is a consequence of the Constitutional implication of the importance of the judiciary. Any disregard of proprieties in that method, direct or indirect, would taint the distribution of sovereignty at the source. Any exercise of influence or the placing of any temptation that would detract from the full independence of the judicial machinery is an act of treason to the Constitution. Any administrative practice that would tend so to influence or tempt judges must be deemed to be inconsistent with the spirit and intent of the Constitution. The highest judges in America are appointed for life and placed beyond accounting to the electorate. The practice of extensions of tenure, and applications and offers of such extensions and other odd jobs carrying remuneration, such as prevails in India, is bad. The appointment of retired judges to salaried places of various kinds has made them less free than they were intended to be.

Democracy is not the committing of all decisions to a majority of the people. The judicial function is an essential part of democracy, although it is not to be subject to popular decision. It is not an exception to but is a part of democracy. As an American writer has said, a river is water but a river is also banks. And without banks there can be no river. If, therefore, any high authority in the executive machinery of democracy should utter a ‘note of warning’ or seek to ‘educate’ judges into good conduct in the name of progress it would be treason to the Constitution. It is wrong for any minister to ask the judges to march with the times, to adjust their ideas to new social ideals and so forth— which means nothing less than asking judges to accept the decisions of popular assemblies and to be untrue to the Constitution and to their oath of office. In a free country any one may advise any one else, but ‘advise’ from the supreme executive authority to the judges is an infringement of the Constitution.

The machinery of government is a delicate one in certain parts. The appointment of judges, their tenure of office and the laws governing their conduct and occupation after retirement, are of this delicate nature. Mischief done in this field is ruinous to the intent of the Constitution. So it is that judges of high rank should not be allowed to accept offices of profit, or prestige equivalent to profit, after retirement. For the same reason, the mechanics of judicial proceedings should be left to the judicial authority and should not be in the hands of the executive. It should be realized by lovers of democracy that if its leaders interfere with judicial authority, democracy defeats itself. The values upon which democracy is based demand the judicial check that forms part of the Constitution.

So also, the individual citizen’s sovereignty in certain fields is an essential part of democracy. Otherwise democracy would result in a negation of its basic values. Whenever fundamental rights are assailed by Parliament and laws are obtained to modify and restrict these sovereignties which were inscribed in the Constitution, it is an anti-Constitutional act and deserves to be strenuously opposed. The fundamental rights were not declared in a hurry but were the outcome of considerable thought and discussion. Later, amendments have been thoughtlessly made to enable carrots to be hung before the electorate. These ought to be all scrapped. This is what the Swatantra Party seeks to achieve.

If one analyses the points raised by the Swatantra Party against the present regime and the programme chalked out by it as against that of the Congress Party, it will be seen that every one of the points raised amounts only to a reversion to the fundamental rights inscribed in the original Constitution of India. Well then, we ask, were the makers of that constitution a rich man’s party or the enemies of the poor as now the Swatantra Party is mendaciously described by some people, who have denied a vested interest in the present Congress administration and, therefore, desire that it should be continued at all costs? No one can cast on the makers of the Constitution of the Union of India such a libellous accusation. The Swatantra Party wants a restoration of that part, viz., the right of every citizen freely to pursue an occupation or trade of his choice, and to have and to hold what he has acquired without fear of expropriation. That those provisions of the fundamental law of the land have been discarded in substance by the present administration is demonstrated by the need it felt to obtain subsequent parliamentary amendments of the articles of the Constitution relating to those rights and freedoms, Indeed these amendments were mostly obtained after the courts definitely declared the invalidity of attempts on the part of the State to violate the rights.