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Republic Day Special: Delving Deeper Into The Pages of Constitutional History

Why, on the eve of the 73rd Republic Day, the nation needs to know about certain important incidents pertaining to India’s constitutional history which remains buried in its pages.

How the Concept of Constitutionalism Evolved

The Divine right of the kings to rule was the doctrine ordained to confer upon the rights to rule the subject, to a particular individual who, by virtue of the divine sanction, was immune from all earthly scrutiny, for all his actions and omissions. This fundamental belief which was orchestrated by the proponents of monarchy, continued for centuries in Europe, before the theory hit the cul-de-sac: The uprising in England, from the elite citizens, refusing to surrender before the contentious doctrine of ‘Divine right of the king to rule’, contributed to the attitudinal change in the mindset of the king as well as the upending of the doctrine of the divine right of the king to rule.

How the Concept of Constitutionalism Evolved

The divine right of the king to rule, which hitherto was considered as sacrosanct, immune from any earthy authority, including Parliament, went for the complete metamorphosis.  Unequivocally, this uprising paved the way for Magna Carta, the charter granting certain rights to citizens, apart from upholding the majesty of law as supreme, even above the King. Thus Magna Carta, the charter granting certain special rights to citizens, came into force in 12 15 in UK. Small wonder then, Magna Carta was the precursor for unfolding of the constitutional history in the world. Much later, Lord Denning had expounded the aphorism, which is held sacrosanct across the world: ‘ Be you however so high, law is still above you’.

How the Constitution in India Came into Force on 26th January 1950

The idea of Constitution in India was espoused by M.N. Roy, the Communist leader. It subsequently was taken up by Congress, which strongly advocated the Constituent Assembly for drafting the comprehensive constitution for the democratic India.

The idea of the Constitution in India was espoused by M.N. Roy
The idea of the Constitution in India was espoused by M.N. Roy

First, it was C. Rajgopalchari, and subsequently, it was Jawaharlal Nehru. Cabinet Mission Plan of Sir Stafford Cripps, too, endorsed the plan for Constituent Assembly based on adult franchise. In June, 1946, the Constituent Assembly came into force. In the provincial assemblies’ election, Congress won 208 seats, Muslim league won 73 seats and 15 won by independent candidates. 93 seats were alloted to princely states.

1st Incident: Why Muslim League opted out of the Constituent Assembly–an anecdote.

Jawaharlal Nehru, in the wake of replacing Maulana Abul Kalam Azad as the president of Congress Party, had issued a statement as the president of Congress Party that, the Constituent Assembly will take a call upon the nation’s fate, pertaining to its partition, incensed the Muslim League to such an extent that the Muslim League irrevocably reconciled to opt out of the Constituent Assembly’, fearing that the overwhelming majority of Congress in Constituent Assembly will trump the aspirations of the Muslim Class for their independent nation.

This misgivings and scepticism accompanied by the mutual trust of Congress and Muslim League for each other, was the trigger behind the Muslim league opting out of the Constituent Assembly. India Wins Freedom, the autobiography of Maulana Abu Kalam, too, encapsulates the above facts.

Incident 2– How Dr. Rajendra Prasad, not C. Rajgopalchari, was appointed as the first President of India–anecdote

Dr. Rajendra Prasad First President of India
Dr. Rajendra Prasad First President of India

Jawaharlal Nehru had fondness for C. Rajgopalachari, for the latter, much like the former, shared an interest in literature, science and philosophy. Jawaharlal Nehru had already made up his mind to nominate C. Rajgopalachari, popularly known as Rajajee. However,  Dr. Rajendra Prasad, on getting the whiff of the same, rushed to Sardar Patel, to  confide in him about Nehru’s plan to elevate Rajajee as India’s first President. In the  meeting of Congress Party, Sardar Patel sprung a surprise by proposing the name of Dr Rajendra Prasad as India’s first President, which became difficult for Nehru to oppose. Unequivocally, Dr Rajendra Prasad went on to become India’s first President.

Incident 3– How the presidential tenure, which had no ceilings–was limited to two consecutive terms Anecdote 3

Article 56 of Indian constitution entails that the president of India shall hold office for five years before his re-election or election of his successor. However, there was no limit for the presidential tenure: he could continue to be elected to his office.

the discord between the Prime Minister Nehru and president Dr. Rajendra Prasad was aggravating

However, the discord between the Prime Minister Nehru and president Dr. Rajendra Prasad was aggravating: Nehru was not in sync with Rajendra Prasad’s strict regimen. Small wonder then, he got the Constitution amended, restricting the presidential tenure to two terms. Hence, Dr Rajendra Prasad had to retire after his two consecutive terms.

How Indira Gandhi sought to hijack Indian Constitution by imposing emergency in 1975. Anecdote 4

The Keshavanand Bharati versus State of Kerala in 1973, where the Basic Structure of Indian constitution was held sacrosanct, not amenable to changes, went on strengthening the roots of Indian Constitution. Significantly, arguing before the full bench of 13 judges, Nani A Palkhivala, the amicus curie of the apex court, had sought to argue that, any tampering with the Basic Structure of the Constitution, tantamounts to presiding over the destruction of the very constitution itself. The full bench upheld the verdict by 7: 6.    This judgment was the key to strengthening Indian democracy, preventing its degeneration into a totalitarian state.

emergency in India 1975

How Indira Gandhi lost her case in Allahabad High Court and imposed emergency upon the nation. Anecdote 5

When Indira Gandhi’s candidature in Lok Sahba was disqualified by Allahabad High Court in 1975 in the landmark case for electoral malpractices, she filed an appeal against the same in the Supreme Court. She always preferred Nani A Palkhivala to file an appeal against it in the apex court. Nani A Palkhivala writes in We the People, his classical book, that how he had reported to Indira Gandhi in the evening at the Prime minister’s residence, and caught the flight back to Mumbai, his place of residence.

Nani Ardeshir Palkhivala
Nani Ardeshir Palkhivala

Inside the flight, a man who knew him and about the case of Indira Gandhi, rushed to know about its updates. Once having been updated, the man made a mystifying observation: a saint in Himalaya had prophesied the black days for India, which was to start from the very next day and continue till next twenty one months. The next day, as Palkhivala opened the newspaper, there was a frightening news: Emergency was imposed upon the nation, and all major opposition leaders were arrested. Surprisingly, as the saint in Himalaya had prophesied, the emergency continued for next twenty one months before it was withdrawn on 27th March, 1977. Significantly, the constitution remained suspended; all fundamental rights of the citizens too were put to abeyance.

How Indira Gandhi sought to nullify the verdict of Keshavananda Bharati case once elected back to power–anecdote 6, known to few people outside the legal fraternity.

Justice A.N. Ray, the relative of Siddhartha Shankar Ray, the then powerful chief minister of West Bengal, who was the most junior judge of the full bench of 13 judges constituted in the famous Keshavananda Bharati case, was elevated to the position of Chief Justice of the Supreme Court by Indira Gandhi. Significantly, Justice A.N.Ray, with an ulterior motto to overturn the apex court’s decision in the famous Keshavananda Bharati case, had replicated the bench with the same number of judges.

Unequivocally, as Justice H.R. Khanna said, ‘ The divinity seemed to express itself through the mouth of Nani A Palkhivala on that day’. putting to shreds, the arguments advanced, Nani A Palkhivala had prevailed over one and all. Thus the landmark judgment of Keshavananda Bharati case was institutionalised for ever. The Constitution was held sacrosanct for Indian democracy to thrive.

How on the eve of proclamation seeking  declaration of emergency, the protocol was put to shreds– anecdote 7.

While going to meet the then President for the latter’s signing on proclamation of emergency, Indira Gandhi while putting constitutional protocol to shreds, took Siddhartha Shankar Ray, the then chief minister of West Bengal, a barrister by profession and close friend of Indira Gandhi since her childhood days, with her to the Rashtrapati Bhavan. Paradoxically, it was Siddhartha Shankar Ray, not the then Union law minister, H.R. Gokhale, who wrote the draft of the proclamation of emergency. This was plainly making a mockery of Constitutional democracy.

Constitution of India
Constitution of India