In dereliction of a fundamental duty

Contrary to popular belief, the Indian Constitution is not the longest written constitution in the world. That distinction goes to the State of Alabama whose colossal constitution laughs at our constitution’s puny 117,369 words, roughly one-third of its (Alabama’s) 340,136. But, inappropriate “size matters” jokes aside, India does have the longest national constitution in the world and that means that even in the single most important document in our country, some provisions tend to get lost or ignored until the need to invoke them arises.

Clearly, the superstars among the 488 Articles in the Indian Constitution are the ones contained in Part III – the Fundamental Rights, the cornerstone of our democracy, carefully and lovingly gathered by the drafters of our Constitution from such epochal, paradigm-shifting documents as England’s and U.S.’s Bills of Rights and France’s Declaration of the Rights of Man. You could say our Fundamental Rights were more than 250 years in the making, the culmination of enlightenment and the humanist awakening after the dark ages.

Comparatively then, the Articles contained in Part IV-A of our Constitution are young upstarts, Johnnies-come-lately, having been inserted into the Constitution twenty-six years after it came into effect. Fundamental Duties? Seriously, who cares? They aren’t even legally enforceable. Ask lawyers or law students about our Fundamental Rights, and they will rattle off the whole list, perhaps verbatim, along with case citations. Ask them about the Fundamental Duties and you will be met either with perplexed expressions or quick dismissal.

Fundamental Duties Article 51A Constitution of India

I mean come on, reading Article 51-A is like getting a short lecture on how to live your life by a slightly preachy granduncle who was alive during the British Raj. The language is vaguer than 2004’s ‘India Shining’ campaign. For example, “to cherish and follow the noble ideals which inspired our national struggle for freedom”? What does that really mean? Let’s be honest with ourselves, different people had different motivations to fight for our independence, and while most of them were noble, there were some who wanted the freedom to create a Hindu mega-state, others who wanted partition, there were vested interests, political games, and intrigue. Wouldn’t it be easier to just name these ‘noble ideals’ we’re all supposed to aspire to specifically? Then there’s “to value and preserve the rich heritage of our composite culture”. What exactly is “our composite culture”? India has several cultures; is this some kind of strange Captain Planet reference? (With your powers combined, I am Composite Culture!) My favourite one is, “to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement”. Um… ok. Right. I’ll make sure I do that. Whatever that is. What it’s supposed to mean, I think, is do your best at whatever you’re doing. Which is what your mommy and daddy told you before sending you off to pre-school. Do we really need it in the Constitution?

So why have these seemingly superfluous provisions at all? Because today, more than ever before, we need to be reminded of a very basic and simple fact: that we need be good people. In a country racked by communalism, parochialism and violence against women, we need our nation-building document to tell us that we must “promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities” and renounce practices derogatory to the dignity of women”. I especially like that last bit. Rather than using paternalistic phrases like “protect our mothers/daughters/sisters” or “modesty of women” (like we’re doing them a favour!), it tells us to introspect, evaluate our actions and renounce practices that hurt the dignity of women. In a country where we turn a blind eye to the worst mining practices, pollution on an industrial scale, indiscriminate poaching, and deforestation in the name of “development”, our Constitution tells us “to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures”.

LemonandGreenChilli_Superstititon_IndiaAnd in a country historically mired in superstition, ignorance, and blind religious bigotry, where even those who have had the advantage of a decent education believe that certain people are inferior by birth, that drinking untreated water from a polluted ‘holy river’, and eating the soil over which a ‘holy man’ has walked will cure a disease, we need our Constitution to remind us “to develop the scientific temper, humanism and the spirit of inquiry and reform”. Dr. Narendra Dabholkar was the champion of this fundamental duty, the pursuit of logical, rational thought in the face of unquestioning belief, before he was gunned down so ruthlessly in Pune. It’s ironic that the very next clause in the Article urges citizens to “abjure violence”.

We are all quick to scream about our fundamental rights, and we definitely should – that’s the very basis of a robust democracy. But, as law students learn quite early on in their academic careers, every right has a corresponding duty. When criticised for promoting superstition and dangerous archaic beliefs, the accused tend to turn immediately to Articles 25 and 19. Well yes, they have the right to say what they want. I believe that the freedom of expression is a right that should not be touched, but that is predicated on the belief that every person has the intelligence to judge and evaluate what s/he is hearing, seeing, or reading and make a reasoned decision about it. It is also predicated on the idea that every person has a duty to respect the other’s freedom of expression and right to criticise. It works both ways.

Our Fundamental Duties, ambiguous and inconsequential as they may seem, are our Constitution’s hope for a better, more mature, more intelligent body of people. The Constitution is almost like a living, breathing being which is on a mission to make our lives better. It keeps giving and when it feels it is failing us, it changes and improves itself. It asks for little in return. And to our complete and unending shame, we let our Constitution down again and again, until it lies bleeding and lifeless in the form of a tireless worker for reform, rationalism, and progress while we watch and shake our fists with impotent rage and walk away.

(Sayak Dasgupta wanders around looking for things to do.)


The ethical Attorney General and three Cs

Shyam Divan’s article in The Hindu today refers to the change in how the Attorney General’s office has prioritised its duties towards the three Cs – Client, Court, and Constitution.

G. E. Vahanvati

Mr. Divan had this to say about the recent conduct of Goolam E. Vahanvati, the current Attorney General of India:

“On Coalgate, the Attorney General represents the Union government since November 19, 2012. The Central Bureau of Investigation (CBI) represented by a separate set of lawyers told the Supreme Court earlier this year it was investigating the suspected criminal conduct and corruption on the part of officials in the Union government with regard to the allocation of coal blocks. Simply put, the CBI had been investigating officials who were working for the Attorney General’s client. Nevertheless, in February and March this year according to the affidavit filed by the CBI Director, the AG was present at meetings with CBI officers, even advising them. The CBI Director states that the advice of the Attorney General was incorporated into the CBI’s confidential status reports, subsequently filed in court. The Attorney General continued to appear for the Union government even after the CBI Director had made such a declaration.”

As an advocate, the Attorney General owes a duty to both client and court. The following extract from Section II (“Duty to the client”), Chapter II (“Standards of professional conduct and etiquette”), of Part VI (“Rules governing advocates”) of the Bar Council of India Rules is relevant to Mr. Vahanvati’s conduct.

33. An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the
opposite party.”

It is also important to understand that appointments to the office are made by the President of India under Article 76 of the Constitution of India. The Attorney General therefore, also has a duty to uphold the Constitution. Very often, this duty would require him at act independent of the Government of India.

M.C. Setalvad understood the need to balance the Attorney General’s duties towards the Client (Government of India), the Court, and the Constitution.

M.C. Setalvad

“The first AG, M.C. Setalvad, led by example in this regard when he appeared before the Chief Justice M.C. Chagla Commission inquiring into the Mundhra scandal in 1958. His severe comments on the conduct of then Finance Minister, T.T. Krishnamachari, and Chagla’s report itself led to the latter’s resignation. In the wake of the Commission’s report, one Member of Parliament criticised Mr. Setalvad’s independence: “The Attorney-General whom we sent to defend our case, became the prosecutor of the Finance Minister and, incidentally, of the Government.””

Mr. Divan’s belief is that Mr. Vahanvati’s recent conduct is part of a trend where the Attorney General’s duty to the Client has been prioritised over the duty to the Court and the Constitution.


(Aju John is part of the faculty on



Judicial appointments – old debate, new faces

The debate about who should appoint judges to the higher judiciary is back on the table. The independence of the judiciary is a key question in our democracy and I think it was the Union Minister of Law and Justice, Kapil Sibal, who put it back there. The Hindu quotes him arguing for a voice for the executive in the appointment of judges.

Mr. Sibal speaks
The Union Minister for Law and Justice speaks

This elicited some response from the Bar. Anil Divan, the President of the Bar Association of India, criticised the secrecy surrounding the Judicial Appointments Commission Bill and argued that Mr. Sibal’s proposal sought to recapture the executive’s primacy in judicial appointments.

The Bar Council of India also wanted in.

“… the BCI as well as state bar councils are also feeling that in the matter of appointments of High Court and SC judges, the bars should also have a say and the concerned bar should also be taken into confidence before the recommendations of names for the appointments.”

So it is not the best piece of drafting, but it is quite clear that the Bar Council of India was angling for representation on the proposed National Judicial Commission.

National Judicial Commission?

We’ll get there soon.

Okay, what’s the “collegium system”?

All appointments to the higher judiciary are made by the President of India. The President and the Union executive that the President’s office represents however, have almost no say in these appointments. The choice is made by a collegium of the most senior judges headed by the Chief Justice of India. If the appointment has to be made to a particular High Court, then senior judges of that High Court are also represented in the collegium.

Once this collegium recommends a name to the President of India, the appointment has to be made. The only influence that the executive of the Union or any of the states can bring to bear on the appointments process is by forwarding material relevant to the choice of a potential judge to the collegium. The collegium however, need not pay heed to the executive.

Woah! That sounds an awful lot like judges appointing judges. How did that happen?

During the last two decades of the previous century, the Indian judiciary appropriated for itself the right to appoint judges to the higher judiciary.

See the following extract from Article 124 of the Constitution of India.

 “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:”

On a plain reading of this provision, the power to appoint judges to the Supreme Court of India is clearly vested in the President of India. After the third judgment in 1998 however, this provision and Article 217, which deals with the appointment of judges to the High Courts, had been interpreted by the Supreme Court of India to mean the collegium system.

Read the three judges cases on Indiankanoon:

S.P. Gupta v. President of India and Others (1981)

Supreme Court Advocates-on-Record Association and Another v. Union of India (1993)

In the Supreme Court of India (In Re. Appointment and Transfer of Judges) Special Reference Case 1 of 1998 (1998)

While it was the culmination of the judiciary’s assertion of independence after some of the excesses of Indira Gandhi’s regime, the use of the collegium system to appoint judges has coincided with a period of increased focus on corruption and the lack of transparency in the judiciary. Mr. Diwan’s column provides more historical context to the current debate.

Leaving aside questions about exceeding the judicial brief, what is the alternative to the “collegium system”?

The National Commission for Review of the Working of the Constitution (“NCRWC“), which submitted its report in 2002, had recommended the establishment of a National Judicial Commission to make appointments to the higher judiciary.

You can watch Mumbai-based Senior Advocate Iqbal Chagla endorse the National Judicial Commission proposal in this video. His argument is that the collegium system places too much faith in the individuals at the top of the judiciary. Justice Krishna Iyer calls the system “outrageous” here because of the scope it allows for favouritsm and its lack of emphasis on a thorough investigation into the antecedents and social philosophy of a judge. The former Chief Justice of India, P.N. Bhagwati, says here, that he is opposed to the collegium system because it often leads to bargaining.

According to the NCRWC, the National Judicial Commission would have the Chief Justice of India as its Chairman and two of the senior most judges of the Supreme Court, the Union Minister for Law and Justice, and an eminent person appointed by the President after consulting with the Chief Justice of India, as its Members.

Are there other opinions about the constitution of the National Judicial Commission?

In the video linked above, Mr. Chagla acknowledged the “vexed” nature of the question about what the constitution of the National Judicial Commission should be, but suggested that it should comprise the Chief Justice of India, the Chief Justice of any other court, eminent lawyers, the Leader of the House, and the Leader of the Opposition. The latest missives from Mr. Sibal and the Bar Council of India argue for representation from the Union executive and the relevant Bar in the National Judicial Commission.

There is another opinion though, and Mr. Chagla refers to it later in the video  — that the question of who will be part of the National Judicial Commission is not as important as accepting the principle of it. I think Sriram Panchu expressed it best.

“But the important thing is not the composition of the Commission. As important as it is, it is also the processes being followed. Today, I put my faith more in processes than in people.”


(Aju John is part of the faculty on