Law or India?

By Justice V.R Krishna Iyer

India was the greatest colony of the British Empire.  Indian culture was one of the most glorious ever as pointed out by Max Muller.  But this glory notwithstanding India suffered slavery under the British Empire.  A.O. Hume a Britisher was humiliated by this servitude of India and he was among the foremost who instigated India’s right for its freedom.  There were other great Indians like Bala Gangadhar Tilak who joined him.  The Indian freedom movement gained mass support even in England. Indian freedom became a powerful movement.  Annie Besant a great orator was a leader of the Satyagraha movement in India.  So powerful was this great movement that the House of Commons granted Indian independence by legislation.  On the 15^th of August 1947 India declared its freedom in a historic speech by Jawaharlal Nehru who was the President of the National Congress.  That speech not very long was a rare performance which I reproduce here:

Long years ago, we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom. A moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance. It is fitting that at this solemn moment we take the pledge of dedication to the service of India and her people and to the still larger cause of humanity.

At the dawn of history India started on her unending quest, and trackless centuries are filled with her striving and the grandeur of her successes, and her failures. Through good and ill fortune alike she has never lost sight of that quest or forgotten the ideals which gave her strength. We end today a period of ill fortune and India discovers herself again. The achievement we celebrate today is but a step, an opening of opportunity, to the greater triumphs and achievements that await us. Are we brave enough and wise enough to grasp this opportunity and accept the challenge of the future?

Freedom and power bring responsibility. The responsibility rests upon this Assembly, a sovereign body representing the sovereign people of India. Before the birth of freedom, we have endured all the pains of labour and our hearts are heavy with the memory of this sorrow. Some of those pains continue even now. Nevertheless, the past is over and it is the future that beckons to us now. That future is not one of ease or resting but of incessant striving so that we might fulfill the pledges we have so often taken and the One we shall take today. The service of lndia means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us but as long as there are tears and suffering, so long our work will not be over.

And so we have to labour and to work and work hard to give reality to our dreams. Those dreams are for India, but they are also for the world, for all the nations and peoples are too closely knit together today for anyone of them to imagine that it can live apart. Peace has been said to be indivisible; so is freedom, so is prosperity now, and so also is disaster in this one world that can no longer be split into isolated fragments. To the people of India, whose representatives we are, we appeal to join us' with faith and confidence in this great adventure. This is no time for petty and destructive criticism, no time for ill-will or blaming others. We have to build the noble mansion of free India where all her children may dwell.

Till then India was a creature of British law and Indian freedom was a part of British jurisprudence.  Indian law was governed by British power who ruled our country through a Viceroy.  Law India had to be eliminated. But from the 15^th of August 1947 when the declaration of Indian independence was made, India was a pre-Republic whose fate was decided by a Constituent Assembly.  This Assembly made India a Socialist, Democratic Republic.  Its entire governance was controlled by an original constitution framed by its own Constituent Assembly.  Its Constitution was the longest and noblest and gave to the people of India a Preamble one of the best in the world.  This Preamble was a proud paramount deed.  This Constitution made Bharat one of the most powerful nations of the Common Wealth.  It had a powerful defense as was demonstrated in World War-I and later in the greatest war the world has seen in the World War-II.

The great issue before the nation was independence or Indian nationality.  In short, the people of India who gave to themselves a Constitution of its own wanted the rule of law govern a great democracy.  Not merely law they also wanted independence.  In short, We, the People of India decided to have the rule of law rather the Socialist Democratic Republic of India and no longer any trace of imperialism but swaraj as contemplated by the resolution passed by the National Congress during its struggle for freedom.

There were feudal cultures in India with over 600 princes governing various territories of their own. While so foreigners came into India.  The Portuguese Vasco De Gama came to Calicut and established the first piece of foreign territory and with this began foreign rule in India.  Gradually other foreign western countries landed in India and made us subordinate to western forces.  Eventually the British dominated India and made this great country its colony.  As started earlier the world faced two world wars and at the end of which a new world emerged.  The UNO came into existence with human rights as a great factor in civilization. The American forces which were after the British waged a civil war which begin with Boston Tea Party and ended with the American Declaration of Independence making Washington the most powerful Nation in the world.  Thus the new world was governed by American Republic, the largest ever world has seen. In this new world India had a great place.  From feudalism the world saw agriculture which in turn was overcome by industrial civilization.  Today the world is largely industrial although India continues to be agricultural.  India lives in its villages largely agricultural. But industrial civilization has taken over with the result the great Mahatma the Father of the Nation made India essentially non industrial. The soul of India is even  today agricultural and the people lives in villages.  Such is our nation but it stand by the rule of law and democracy.  Each adult citizen having franchise today.  India is a democracy and a socialist secular democratic Republic.  What we have gained is the rule of law. No longer under princess but under the people. Bharat is now a people’s democracy.

This grand Republic in this excellence is best understood by its noble Preamble which runs thus:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY, of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation.

This grand Preamble sums up the essentials of the anatomy of our Constitution.  In essence it is socialist which means that the imperial capitalist rule of law must quit and the common man not the wealthier class will have the governance of the nation.  The conscience of the Constitution lies in Part III and IV.  The great human rights enshrined in Part-III are perhaps the glory of our Constitution.  The Directive Principles of State policy imparts a public dimension to the values of the Constitution.  That is why under our Constitution Public Interest Litigation played so key a role that whenever there is a violation either by the executive or by the legislature of the public values of Part-III and IV it is open to any citizen to move the higher courts and seek a writ to defend his rights and the ruling of the High Court is a great protection of the citizens under Article 141 and 32 of the Constitution.  As we read through the entire Constitution what looms large is the anxiety of the framers to use the Constitution for the weaker sections of the Indian community.  It is not merely a materialist document but gives importance to spiritual and moral value as well.  Article 47 is all against alcoholism and for the have-nots.  This is the quintessence of socialism nor is our Constitution against spiritual value.  Secularism as declared in the Constitution secularism, creedal freedom, integrity, fraternity and equality of faith.  Even linguistically people have freedom of language and cultural development.  In short, a multi-dimensional progressiveness is stridently writ large in the various schedules of the Constitution.  But above all, national unity is paramount and legality is equally important.  We have the best Constitution but it works well and makes the country unite so long as the operators of the paramount deed work it well.  The Constitution is how it operates vis a vis the little Indian as he exercises his vote freely and in fulfilment of the Preamble.   Justice above all is the prominent feature of our LAW.  International peace and comity is a prominent feature of our paramount deed.

The will of the majority of the people of India decides who wheels the sovereign power.  The people in their majority articulate their voice through the General Elections periodically held where every little Indian through his little mark makes his will speak on paper which our final court tells the world who will command the sovereign power of India that is Bharat. ’the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper—no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.‘  

India finds its finest expression of humanity and divinity blended in a humane unity not through the wonder of verbalism but through the determination of its people through a periodic General Election not through the wealth of party or of any personality or family but through the numbers of adult Indians in a free and fair election independently held with the ultimate validity ruled by the Supreme Court which enjoys sovereign power under the Constitution.

As earlier elaborated the twin paramount commitments of the Constitution Indian humanity are (A) Law India by which I mean the country is committed to the rule of law as finally upheld by the Supreme Court of India and (B) Its non-negotiable subordination to swaraj as accepted by the nation as a whole and never belonging to a family or personality.  The rule of law is controlled by an absolutely independent judiciary supported by a Bar utterly subject to integrity.  A humane justice and a Bar which surrenders to have except the rule of law the best description of this concept is given by Justice Felix Frankfurter thus:

No one can be a truly competent lawyer unless he is a cultivated man.  If I were you, I would forget all about any technical preparation for the law.  The best way to prepare for the law is come to the study of the law as a well-read person.  Thus alone can one acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking which only a truly liberal education can give.  No less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great paintings, in the original or in easily available reproductions, and listening to great music.  Stock your mind with a deposit of much good reading, and widen and deepen your feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe, and forget all about your future career.