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Milton's Paradise Lost is one of the great epic poems in
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English literature. It is also one of the longest. Milton's critic
Dr. Samuel Johnson once said that "he could not wish it Search All
longer". The same can be said about our Constitution: as
enacted, it contained 395 articles (with a Bill of Rights) and an
appendix of eight schedules, occupying in the ofcial edition
251 printed pages. Yes, one could not wish it longer!
The life of a written Constitution, like the life of the law, is not
logic (or draftsmanship), but experience. And fty-ve years of
experience on this subcontinent has shown us that it is easier to
draft a Constitution: than to work it. Pakistan and Bangladesh
have drafted and crafted different written Constitutions at
different times, but they have been interspersed with long
periods of martial law and civil and military dictatorships.
The same three words are also the opening words of the world's
oldest Constitution, that of the United States. And the answer
to the conundrum as to what relevance a written Constitution
has for the overwhelming majority of its people who were not
born before its promulgation and therefore not included in the
phrase "We the People" was provided by a shrewd political
observer of the Constitution of the US. She said, yes it was a
woman, a Congresswomanshe said (referring to the US
Constitution):
It was the challenge to the First Amendment that raised for the
rst time the question whether Parliament could by a special
majority and after following the requisite procedure prescribed
in Article 368 amend the Constitution so as to abridge or take
away any of the fundamental rights set out in Part III of the
Constitution.
The stage was now set for the grand challenge. If Golak Nath4
was rightly decided, the Twenty-fourth, Twenty-fth and
Twenty-ninth Amendments were void; if not, the powers of
Parliament (and the powers of future Parliaments) were
severely curtailed.
Dr. Basu's view was that of the strict legal constructionist but
the Supreme Court was not bound by a literal view of the
Constitution. Great cases are often shaped by events as Justice
Cardozo famously said: "the hydraulic pressure of great events
do not pass Judges idly by". Though of doubtful legal validity
the basic structure theory was the reaction of a court that was
apprehensive of an overenthusiastic and an overpowering one
party majority in Parliament. But the doctrine, even though
illogical, has come to stay and it was rmly cemented in 1975
because of an overenthusiastic response of the Government of
the day to a verdict of the Allahabad High Court.
He was right. If the people really willed it, they could. But no
one in the United States is going to abolish the US Supreme
Court, and one can safely predict, with equal condence, that
no one is going to abolish the Supreme Court of India nor the
concept of judicial review. Judicial review will remain an
integral part of Indian constitutional law and practice: simply
because the Supreme Court, relying on popular opinion, has
denitively said so. Undoubtedly, primary control on
governmental activity in this as in any other democracy is with
the people. The power which the Supreme Court of India
exercises rests ultimately upon their tacit approval. But
experience has taught us to take (what Madison once described
as) "auxiliary precautions". The basic structure theory was the
response of an anxious and activist court to the experience of
the working of the Indian Constitution during the rst twenty-
three years. It remains today as an auxiliary precaution against
a possible tidal wave of majoritarian rule, do remember (and if
you are too young to remember do make a note of a stark fact
in our constitutional history) that majoritarian rule was the
political order of the day for nearly forty long years from 1950
right up to the late nineteen-eighties.
At the time when the Tenth Lok Sabha had, all but in name,
been dissolved, the Narsimha Rao Government placed two
ordinances before the then President Shankar Dayal Sharma for
promulgation, namely, one for shortening the period of poll
campaigns from three weeks to two weeks and the other to
extend reservations in public employment (or quota) to Dalit
Christians. President Sharma relying on the proviso to Article
74(1) of the Constitution sent back the draft ordinances to the
Government with a note dated 19-3-1996 which read:
Wherearewe?
Wherearewenow,dearfriends,
IntheMahaSabhathatshapesashistory,
ThecallofheartbeatsofIndianpeople,
Peopleaskus,peopleaskus
Oh!Parliamentarians,thesculptorsofMotherIndia,
Leadusuntolight,enrichourlives.
Yourrighteoustoilisourguidinglight,
Ifyouworkhard,weallcanprosper.
LikeKing,sothepeople,
Nurturegreatthoughts,riseupinactions,Mayrighteous
methodsbeyourguide
MayyouallprospereverwithAlmighty'sgrace.
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