Musings on the Constitution- LVII Narasimhan Vijayaraghavan

Musings on the Constitution- LVII
Narasimhan Vijayaraghavan

The US Constitution is famous for its First Amendment granting fundamental right to free speech, which explicitly and not by implication, includes freedom of Press, as well. The Fourth Estate enjoys absolute freedom with no ‘reasonable restrictions’ as under Chapter III of the Indian Constitution. America being the leader of the free world owes not a little to this faculty, which of course has come under stress under Donald J Trump’s Presidency, as he has openly called the community of ‘journalists as enemies of the people’. There is pushback and the print and electronic media have had far more eyeballs now than ever before. The ‘failing New York Times’ is no longer failing but thriving. And Trump himself has morphed his way from Commander-in-Chief to Tweeter-in-Chief with over a record 90 million followers.

In the context of the relevance of the Debates in the Constituent Assembly, oftentimes in India too, we have a healthy practice of relying on ‘convention’ as by precedence coming to be accepted as law. ‘It may not have the legally binding force. But the morality behind such convention lends it a muscle which law may fail to provide’ said Justice V R Krishna Iyer. For instance, while India and the US have written down Constitutions, the United Kingdom has an Unwritten Constitution. But, technically, they have theirs harking back to the Magna Carta in 1215, far older in vintage.

Convention and practice have gained huge legitimacy lending credence to ours too – day in the context of choice of calling the party to form a government by the President. Our Constitution May be silent. But the debates provide away out as the Sarkaria Commission recommendations suggest.

In the US, we recently had the Impeachment Motion against Donald J Trump. Earlier, we had Richard Nixon resigning in the wake of impeachment motion after the Watergate scandal. The law is that the ‘powers of the President devolve on the Vice President’, when the President is no longer there. But, there was no clarity on whether the Vice President took over as the President’. According to Article II, Section 1 of US Constitution, “In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President”.

While this Section states that the Vice President inherits the powers and duties of the Presidency, it does not state that he or she should assume the ‘office’ of the Presidency itself. One Senator made an analogy, ‘If a colonel was shot in battle, the next officer in rank took command of the regiment, but he did not become a colonel’. But when President William Henry Harrison became the first President to die while in office in 1841, Vice President John Tyler began referring to himself as the President, and the ‘convention’ stuck. But this convention did not formally become law in USA until 1967, 126 years later, when 25th Amendment to the US Constitution was ratified.

India remembers the occasion that Atal Bihari Vajpayee underwent a knee surgery, though there is no formal ‘baton handing over under our Constitution’ there was a healthy convention to let the administration know who was second in command to ‘take charge’. In the US Constitution, there is a formalisation of this procedure under Sec.2 whereby the President cedes the power to the Vice President. George Bush did it twice when he underwent a surgery and even Ronald Reagan is understood to have followed this practice when he underwent one. Any symbolic reference even to such practices in the ‘debates leading to the Constitution lend credence for future administrations to follow, even if the Articles themselves may be silent about it ’ writes an Yale law Professor.

George Floyd, is an African-American name now in prominence. He had the knee of a Minnesota Police officer on his neck for 8.46 minutes, which set off huge protests making a mockery of the social distancing norms amidst the virulently Pandemic times, in the US and even in several western societies. The treatment of blacks and Black Lives Matter is no ordinary slogan as Slavery was 401 years ago brought to US and even ‘constitutionally accorded sanction’. ‘It took the Abraham Lincoln Emancipation Proclamation of Jan 1,1863, to rid from the books but has taken far longer and to this day tough to erase from the hearts and minds of Americans’, writes New York Times.

Freeing The Slaves: 1862: President Abraham Lincoln reading the Emancipation Proclamation, which declared that all slaves in rebel-held territory would be ‘thenceforward, and forever, free’.

The 13th Amendment to the US Constitution carries within itself the burden of such proof and even today some States do not pay any wages to some prisoners for ‘non industry work’. Our Constitution, of course, explicitly swore to abolish ‘

Freed Slaves: A group of escaped slaves that gathered on the former plantation of Confederate General Thomas Drayton. After Federal troops occupied the plantation these former slaves began to harvest and gin cotton for their own profit.

‘Untouchability’, vide Art.17, spoken to evocatively and eloquently by many a member of the Constituent Assembly. But, even today, there are those that India may still be in need of a focused anti-discrimination law for enforcement as equality does not happen by itself. The debates in our Constituent Assembly may be helpful if ever our Parliament chooses to consider one.

Ours is a battle not for wealth or for power. It is a battle for Freedom. It is a battle for reclamation of Human Personality.
— Dr B R Ambedkar

To eliminate discrimination based on untouchability practices. To ensure equality of status and opportunities for all, regardless of caste, class, or gender. To ensure the rule of law

There are curious provisions in the Constitutions put in place but never come to use. For instance, there is a peculiar provision in the US Constitution relating to ‘piracies’. Article 1, Section 8 gives the US government the authority ‘to define and punish piracies and felonies committed on the high seas’. It also allows the government to grant letters of marque- that is to grant permission to become privateers. Such a licence could allow you to capture, steal, or spy on America’s ships of foreign enemies! Anecdotally, it turned out to be a fantastic rumour and only a rumour that Goodyear Blimp received a letter of marque during World War II to hunt Japanese submarines off the shores of California.

Piracy During US Civil War

It is the submission of the Originalists ‘that such provisions ought to be read in the then and not in the now, as they belonged then and never in the now’ as Justice Antonin Scalia once said, while sticking to his line that ‘Constitution ought to be read as it was enacted and not as if evolving and continue to do so as if a living organism’. The debates in the Constituent Assembly do matter, for ever so many reasons, and that makes it a riveting tale to revert to.

(Author is practising advocate in the Madras High Court)

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