Constitution- An Embodiment of Bhartiya Values
Constitution- An Embodiment of Bhartiya Values
First published in the Daily Excelsior, Jammu, July 2017
Shri Dattopant Thengadi conceived the idea that certain essential cultural national values had been left out from the text of the Indian Constitution which primarily was drafted after borrowing some systems of governance from the Constitutions of prominent Western Nations.
"न्यायः मम धर्मः"
Bhagawat Gita starts with the first word Dharma incorporated in first Shloka and ends with the word mama contained in last verse (78) of chapter 18th. This classical sermon was given by Lord Krishna to his most trusted disciple Arjuna for the sake of upholding Justice over injustice. As Bhagawat Gita is eternal and everlasting as such, the motive of Parishad is also unperishable.
Manu Smriti (X-311) states
यथा सर्वाणि भूतानि धरा धारयतेसमम्।
तथा सर्वाणि भूतानि विभ्रता पार्थिव व्रतम्।।
Just as the mother earth gives equal support to all the living beings, a king (state) should give support to all without any discrimination.
We have adopted the model of legal system which is based on Anglo-saxson system where no action against the crown was contemplated as it was a thumb rule that “King can do no wrong.” Contrary to this concept thousands years ago in the “Kathopanishad” it was stated, “Law (Dharma) is the king of kings. No one is superior to law. With its prowess that of the highest Monarch the weak shall prevail over the strongest.”
Dr Radhakrishnan while speaking in the Indian Constituent Assembly on 26-01-1948 in support of the objectives resolution, quoted the above verse and stated that likewise we are adopting the principle of “Supremacy of the Constitution.” Western definition of Law is :- “Law is a command by a political Superior to a political inferior and enforced by the police power of the state.” It is in the recent past History that in the Western Judicial System the Courts had not been empowered to take Cognizance against the wrongs committed by the crown. This shows how much superior our Indian Jurisprudence was thousands years ago as compared with Western Civilisation.
Legendary Advocate Shri Palkivala had called Indian Constitution as, “The Sublime Constitution.” On August 29, 1947, the Constituent Assembly appointed a drafting Committee and Dr. Ambedkar was made the Chairman. He presented a draft in February 1948. This draft was discussed accordingly altered and finally adopted on November 26, 1949. The Constitution came into force on 26-01-1950. Though the framers of the Constitution took inspiration mostly from different Constitutions of the Western Countries, still certain provisions are unique and deep rooted in the Indian traditions. When the Constitution had come into force at one time Dr. Ambedkar had stated, in unequivocal terms, that, “however good a Constitution may be, it is sure to turn out to be bad because those who are called on to work it happen to be a bad lot. However, bad Constitution may be it may turn out to be good if those who are called to work it happen to be a good lot.”
Democracy has been defined by different thinkers in different terms, though Lincoln’s definition has become the most popular. (Government of the people, for the people, by the people). Democracy is a way of life. It involves rational empiricism, emphasis on the individual, the instrumental nature of the state, voluntarism, the Law behind the Law, nobility of means, discussion and consent, absence of perpetual rule, and basic equality in all human relations.
For a King, the duties toward his subjects have also been prescribed in our ancient legal system and the relevant shloka is reproduced
दुष्टस्य दण्डः सुजनस्य पूजा न्यायेन कोषस्य च संप्रवृद्धिः।
अपक्षपातो$र्थिषु राष्ट्रृरक्षा पञ्चैव यज्ञाः कथिता नृपाणाम्।।
To punish the wicked, to honour (protect) the good, enrich the treasury by just methods, to be impartial towards the litigants and to protect the kingdom, these are five yagwas (selfless duties) duties to be performed by a King.
He who does not observe the Rashtriya Dharma perishes soon as it is said
धर्म एव हतो हन्ति धर्मो रक्षति रक्षितः।
तस्माद्धर्मो न हन्तव्यो मा नो धर्मो हता$वधीत्।।
Dharma protects them who protect it. Those who do not protect the it get themselves destroyed as a consequence thereof. Therefore we should always follow our own Dharma which means our duties.
Mahabharata Karna Prava- eulogises Dharma in the following words
धारणाद्धर्मित्याहुर्धर्मो धारयते प्रजाः।
यत् स्याद्धारण संयुक्तं स धर्मिति निश्चयः।।
“Dharma sustains the society, Dharma maintains the social order, Dharma ensures well being and progress of humanity. Dharma is surely that which fulfils these objectives quoted with approval by the Supreme Court in 1996 (9) SCC 548 paras 59-69.”
In our Democratic setup, the Administration of Justice is entrusted to legal system and its delivery is made through Judges assisted by lawyers. The citizens of the country as a whole are the consumers and the state is the biggest Litigant. The elected Legislators enact the laws, the executive at the directions of the Council of Ministers execute them and the Judiciary interprets their legal validity. The fourth estate is the press (media) which independently reports the results of the Governance to the public. These are the four recognised pillars of the Indian Democratic Polity on which the edifice stands.
The ancient texts remind us how a king (now state including judicial collegium) should appoint the members of the courts of Justice.
राजा तु धार्मिकान् सभ्यान् नियुञ्ज्यात् सुपरीक्षितान्।
व्यवहार धुरं वोढ़ुं ये शक्ताःसद्गवा इव।।
धर्मशास्त्रार्थ कुशलाः कुलीनाः सत्यवादिनः।
समःशत्रौ च मित्रे च नृपते स्युः सभासदाः।।
“ Honourable men of proven integrity, who are able to bear the burden of the administration, laws, rules of prudence, who are noble and impartial towards friends and foes.”
Administration of Justice is a joint venture in which the lawyers and Judges are equal participants. The study of law, as has been well said, in its higher sense, is the philosophy of social life. The art which they have to practice is one of the noblest, its object is the protection of human interests in all the relations of life, and the methods of which rules of decisions are deduced must satisfy at once the requirements of legal science and substantial Justice.
Our Sub-Continent was divided by the Britishers on the basis of religions i.e., Hindus and Muslims. Hinduism has the same outlook as the pre-Christian and pre-Muslim philosophies had. Like them, Hinduism takes for granted that there is more than one approach to truth and to salvation and that these different approaches are not compatible with each other but are complementary.
एकं सत् विप्राःबहुधा वदन्ति।।
The constitution makers were fully conscious of the broad and comprehensive character of Hindu Religion and in the Preamble they incorporated one of the basic features that of Secularism. Chapter IIIrd of the Constitution guarantees Fundamental Rights. They gave equal protection to life and liberty, equality before law, no discrimination on the basis of religion, birth, caste, creed or gender etc. While guaranteeing the Fundamental Right of freedom of religion; Article 25 has made it clear, Hindus shall be construed as including a reference to persons professing the Sikhs, Jain or Budhist religion. The Hindu Marriage Act applies to all the persons domiciled in the territories of India unless he proves that he is a Muslim, Christian, Parsi or Jew.
Article 44 in chapter IV of the Constitution says, “the state shall endeavour to secure for the citizens a uniform civil code in India.”
Under the Hindu Marriage Act of 1955 several pedantic and conservative traditions were rooted out from the Hindu religion. Gender equality was restored. Women were given equality in marriage, divorce, guardianship, and property. Inter caste marriages were made valid. Recently, an amendment has been made whereby women have been given all the rights at par with the male members to inherit the ancestral (coparcenary) property.
Unfortunately Hindu women of J&K State still stand deprived of the benevolent amended provisions of such law.
The Supreme Court has made the following observations in Shah Bano Case throwing its weight behind the uniform civil code for all the citizens of India. It has held :-
“When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “Uniform Civil Code” for all the citizens in the territory of India.”
Article 48 of the Constitution states that, “the state shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.”
Through ancient times, cows have been worshipped and revered by the Hindus. The status of mother has been given. In pursuance of this Article, Cow Protection Acts have been passed across various states of India.
Cow slaughter has been banned in 24 states across India. A seven judge Constitutional Bench of the Supreme Court in the state of Gujarat v. Mirzapur Moti Kureshi Kasali has upheld the Constitutional Validity of this Act.
In our state of J&K, slaughter of cow stands abolished by law during the Dogra Rule i.e., from 1846. Even prior to that during Sikh Rule lasting for about 27 years in Kashmir Valley it was banned. Not only that, majority of Muslim rulers had banned cow slaughter in Kashmir Valley where they ruled for 500 years. This is a hilly state and cow with her progeny helps a lot in agricultural and horticultural economy. Though the law is still in force but after 1975 when radicalisation of Muslim Society started it is getting eroded day by day. In Muslim Majority areas now practically no case is registered which otherwise was in practice as most of the cases were registered and people were appearing as witnesses from all segments of the society. In the interior parts of the capital city of Srinagar sale and purchase of beef is taking place openly in broad day light.
Article 44 and Article 48 have always attempted to classify every decision either as the will of authoritarian majority or as “majority appeasement; as Secularism of Fundamentalism.”
Both the concepts were explained beautifully by the SC in Ismail Farooqui v. Union of India 1994 (6) sec 360. It has held :-
“It is clear from the Constitutional scheme that it guarantees equality in the religious matters to all the individuals and groups irrespective of their faith, emphasising that there is no religion of the state itself. The concept of Secularism is one facet of the right of equality woven as the central golden thread in the fabric depicting the pattern of the scheme of the Constitution.” In the same judgement which is also known as the famous “Ayodhya case of Babri Masjid” Justice A.M. Ahmedi and Justice S.P. Bharucha had said, “Hinduism is a tolerant faith, which has enabled Islam, Christianity, Zoroastrianism, Bhudhism, Jainism and Sikhism to find shelter and support of the land.”
Article 40 of our Constitution states that, “The state shall take steps to organise village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self Government.”
Even during Vedic period “Gram Sabhas” were in vogue to solve the local issues of the people. They were the democratic institutions which decentralised the powers in the hands of the people.
In pursuance of this Directive Principle of State Policy 73rd Amendment Act was passed in the year 1992 and ancient traditions were given a Constitutional status. They are working throughout the country.
Unfortunately in our J&K state we have separate Directive Principles enshrined in J&K State Constitution. They are 25 in numbers. Section 16 of the Constitution of Jammu and Kashmir states that state shall take steps to organise Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-governments. Like in other states of the country, in the state of J&K, Village Panchayats have been established but they are just like show pieces as Government has not empowered them fully with funds and judicial powers.
“Kuchh aise bhi auqat dekhe hai zamana mai
Lamhon ne khata ki aur sadiyo ne saza payi”
The above quoted Urdu couplet is relevant in our state from the year 1947 as some historical mistakes were committed at certain times. As a consequence thereof the nation is reaping the fruits in an adverse manner which may last for coming centuries. Even chapter IIIrd of the Indian Constitution is not fully made available to the state. Some of the Fundamental Rights apply here with some amendments while as few remaining are not made applicable.
Articles 14 to 16 deal with equality clauses for all Indian citizens. Though apparently they are applicable but in practice their essence is not made available to the inhabitants of Jammu Region irrespective of their religion caste or creed. As an instance we do not have equal right of voting qua the inhabitants of Kashmir Valley. To illustrate this point I may take the Assembly Constituency of Gandhi Nagar of Jammu City which in the state represents maximum number of voters. In case we club together the numbers of two Constituencies representing maximum voters of Srinagar city even then the number of Gandhi Nagar voters would be roughly more than 30,000. In the same manner Jammu West Constituency also exceeds the number of voters of total number of voters of two Constituencies of Srinagar City. To make it more clear the Hindu voters of Jammu Region are at more disadvantage while as Muslim voters of Jammu Region though they are also sailing in the same boat remain at disadvantage but to lesser extent. This is in contrast to the Directive Principle contained in Section 13 of the State Constitution which to some extent is at para materia with Article 38 (1) of Constitution of India. Section 13 says in brief that there would be promotion of the welfare of mass of people by establishing and preserving a socialistic order of the society wherein all exploitation of man has been established and society wherein justice- social, economic and political- shall conform all the institutions of National life.
In our state the Hindus are as minority community but like other states in the country no Minority Commission has been established here.
At the end, it is stated that in the year 1948 Sheikh Abdullah out of way was installed by Pandit Jawahar Lal Nehru as the Prime Minister of the J&K State at the cost of duly appointed Prime Minister by the Maharaja Hari Singh namely, Shri Mehar Chand Mahajan whose term had to expire in 1953. According to the agreement then arrived at by Maharaja Hari Singh with central Government Sheikh Abdullah had to act as Chief Emergency Administrator under Mr. Mahajan. Within 4 months Sheikh got ousted Mr. Mahajan and occupied his vacated chair for himself. Afterwards, the state of J&K became a playground of international political intrigues. Sheikh Abdullah by uzurping the powers of Prime Minister of the State started behaving like a monarch by ignoring Maharaja Hari Singh who still was Monarch. Thereafter, within two years by use of his personal influence of friendship with Prime Minister Mr. Nehru he succeeded in getting exiled Maharaja Hari Singh for good. Sheikh Abdullah became an unchallenged Monarch as he had the weapon to exploit India by blackmailing her that even if plebiscite is forced in the state of J&K he would prove useful for India or could cause harm. In fact plebiscite was not possible as Pakistan was not vacating her army personnel from the state areas occupied forcibly by making an aggression. It was the first condition for holding plebiscite. Undoubtly, at that time, the majority of the population of the state was in favour of the Indian Dominion and continues to be so till date. Sheikh Abdullah had started playing the dirty game to perpetuate his family rule by becoming an absolute sultan (Monarch). He had clandestinely joined hands with Western powers to achieve his object. He was even opposed to grant Fundamental Rights to the residents of the state. This game was understood by the Union Government as well as by his own cabinet colleagues who jointly revolted against him. He had lost the majority in the cabinet and was dismissed as Prime Minister. The rest is the matter of history how Maharaja Hari Singh had pardoned Sheikh Abdullah on the basis of his unqualified written apology dated 26th of September 1947 to undergo remaining conviction and sentence of one and a half year for the commission of offence of sedition. Sheikh Abdullah had not only shown disloyalty to Maharaja but to his friend and mentor Prime Minister Pandit Nehru also. For such unconscious and unwarranted acts committed at that material time of history the life in J&K state has become hellish from the year 1990 on account of eruption of militancy and spread of terrorism. The rule of law as contemplated in the Constitution too has become the main casuality.
Justice (Retd.) G.D. Sharma