Musings on the Constitution-XLIX Narasimhan Vijayaraghava n Justice Hand had a philosophy. Justice Cardozo had one. Lord Denning was not beyond it. “If I claim that I did not have one when I assumed office, I would be a lot less than truthful” admitted Justice V R Krishna Iyer. He was perceived to be a

Musings on the Constitution-XLIX
Narasimhan Vijayaraghavan

Justice Hand had a philosophy. Justice Cardozo had one. Lord Denning was not beyond it. “If I claim that I did not have one when I assumed office, I would be a lot less than truthful” admitted Justice V R Krishna Iyer. He was perceived to be a human rights protagonist and a labour welfare oriented being and that philosophy pervaded his purple prose from the pulpit. Your education, family upbringing and values, community, societal surroundings all impact who you become and who you are. The beauty of a judge is to rise above it and not let these influences intrude into your decisions.

Constitutionally speaking, the debates in the Assembly were by intelligent, mature beings with their own philosphies. In the first place, the selection of members itself was to give as wide a representation as possible to reflect the diversity in us. While therefore considering the contents of the debate, not only the context matters the speakers too. The Courts therefore have a tough call in factoring in the debates. “That is why there was reluctance to go for extrinsic tools” suggested an academic. Where is the proof that it took us longer than necessary to go searching for the Debates as a court? Two decades after our Supreme Court came into being, there was this unequivocal admission and pronouncement by the supreme court on 24th April, 1973, which is a watershed moment in India’s not judicial history but very existence as a Parliament democracy and a Republic, if we can keep it.

Now read Justice Jaganmohan Reddy in the 703 page epic- Para 1131 to be exact- that Keshavanand Bharati vs State of Kerala has proved to be.
“1131. Before I refer to the proceedings of the Constituent Assembly, I must first consider the question whether the Constituent Assembly Debates can be looked into by the Court for construing those provisions. The Advocate-General of Maharashtra- Hormasji Maneckji Seervai- says until the decision of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India (1971) 3 S.C.R. 9-commonly known as Privy Purses case- debates and proceedings were held not to be admissible. Nonetheless counsel on either side made copious reference to them. In dealing with the interpretation of ordinary legislation, the widely held view is that while it is not permissible to refer to the debates as an aid to construction, the various stages through which the draft passed, the amendments proposed to it either to add or or delete any part of it, the purpose for which the attempt was made and the reason for its rejection may throw light on the intention of the framers or draftsmen. The speeches in the legislatures are said to afford no guide because members who speak in favour or against a particular provision or amendment only indicate their understanding of the provision which would not be admissible as an aid for construing the provision. The members speak and express views which differ from one another, and there is no way of ascertaining what views are held by those who do not speak. It is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result that a particular provision or its amendment has been adopted or rejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the provision can be referred to for finding out the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore Cochin and Ors. v. Bombay Co. (1952) S.C.R. 113, the Golaknath’s case, the Privy Purses case and Union of India v. H.S. Dhillon (1972) 3 S.C.R. 33 there are dicta it is drafted by people who wanted it to be a national instrument to against referring to the speeches in the Constituent Assembly and in the last mentioned case they were referred to as supporting the conclusion already arrived at. In Golaknath’s case as well as Privy Purses case the speeches were referred to though it was said not for interpreting a provision but for either examining the transcendental character of Fundamental rights or for the circumstances which necessitated the giving of guarantees to the rulers. For whatever purpose speeches in the Constituent Assembly were looked at though it was always claimed that these are not admissible except when the meaning was ambiguous or where the meaning was clear for further support of the conclusion arrived at. In either case they were looked into.”

In recent times of course, the apex court has willingly and unfailingly dug into the Debates before the Constituent Assembly , as in the K S Puttaswamy case (Right to privacy) by no less than Nine judges and/or in the verdict of 4:1 as in trashing the National Judicial Appointments Commission Act. One can cite more, but it would be repeating the obvious. That it took over two decades for the Supreme court to oblige the dreams of an European who headed the International and Constitutional Law Department of the Madras University in Aug,1951- Charles Henry Alexandrowicz is the surprise. In 1957, he wrote a monograph,
“Courts were frequently ignoring the constituent assembly’s debates about the framing of Constitution when deciding constitutional cases. It was a mistake as the debates offered valuable guidance. The debates could help gaps in the Constitution’s text; lessen tensions between the legislature and judiciary: reduce the need for constitutional amendments: and adopt the charter to changing times.”

Well, the Kesavanand Bharati case probably obliged with a thunder and there has been no looking back.

Justice Jaganmohan Reddy added for emphasis;
“Speaking for myself, why should we not look into them boldly for ascertaining what was the intention of our framers and how they translated that intention? What is the rationale for treating them as forbidden or forbidding material. The Court in a Constitutional matter, where the intent of the framers of the Constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim light in which nothing can be discerned. Unlike a statute, a Constitution is a working instrument of Government, it is drafted by people who wanted it to be a national instrument to subserve successive generations. The Assembly constituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri B.N. Rau to assist it. A memorandum was prepared by Shri B.N. Rau which was circulated to the public of every shade of opinion, to professonal bodies, to legislators, to public bodies and a host of others and was given the widest publicity. When criticism, comments and suggestions were received, a draft was prepared in the light of these which was submitted to the Constituent Assembly, and introduced with a speech by the sponsor Dr. Ambedkar. The Assembly thereupon constituted three Committees: (1) Union Powers Committee; (2) Provincial Powers Committee; and (3) Committee on the Fundamental Rights and Minorities Committee. The deliberations and the recommendations of these Committees, the proceedings of the Drafting Committee, and the speech of Dr. Ambedkar introducing the draft so prepared along with the report of these Committees are all valuable material. The objectives of the Assembly, the manner on which they met any criticism, the resultant decisions taken thereon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection will be helpful in throwing light on the particular matter in issue. In proceedings of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a Constituent Assembly have no such partisan nuances and their only concern is to give the nation a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of fortes which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it, should not, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly.”

It took us 23 long years since that day on 28th Jan, 1950, when the Supreme Court of India was inaugurated to go looking for ‘evidence’ in the Debates in the Constituent Assembly, to understand what the Constitution was all about and what our framers dreamed for us We The People. Who was this Kesavanand Bharati? How did Nani Palkhivala appear for him? How did it come about? Who were the dramatis personae in this constitutional drama and what did they have to say? And how does it all matter today? There is so much packed into one tale that we…
(Author is practising advocate in the Madras High Court)

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