'I’m here because of Ambedkar’s Constitution, so is President Murmu'

“I am where I am only because of Babasaheb Ambedkar and the Constitution he gave us, so is President Droupadi Murmu, a tribal woman,” said Justice BR Gavai. “Like her, we had two Dalit presidents earlier. Today, Dalits are heading police forces across states. This is all because of Ambedkar’s Constitution.”

The Supreme Court judge was speaking at the Ambedkar Memorial Lecture held on Monday evening (April 15) to commemorate the 133rd birth anniversary of Dr BR Ambedkar, the architect of the Indian Constitution, at the Indian Society of International Law in New Delhi.

Origin of Article 32

Delving in detail on “Article 32: History and the Future”, the theme of the lecture, Justice Gavai, who has 19 years of law practice and 20 years in judicial services behind him including 16 years as a high court judge, reflected on the origin of Article 32.

Calling Article 32 “the soul of the Indian Constitution”, Justice Gavai said: “With a great sense of pride, I must say the credit of the origin of Article 32 of the Constitution goes to none other than Dr Br Ambedkar.”

He also reflected on the evolution of Article 25, the predecessor of Article 32, and Ambedkar’s rejection of Jawaharlal Nehru’s draft resolution in December 1946 as the proposed provision – though it guaranteed rights under the article – did not provide remedies in the case of emergency which warranted suspension of the fundamental rights.

“This is the most important article in the Constitution as it is the guardian of the people’s rights,” Justice Gavai said.

Core principles

He went on to discuss in detail equality, liberty and fraternity, the three core principles of Ambekar’s philosophy which he said complement each other, laying special emphasis on fraternity.

Without fraternity, as Ambekar said, there is no social equality and liberty and without them there can be no social democracy, though there would be political democracy, he observed. “Political democracy cannot last unless their lies at the base social democracy,” Dr Ambedkar had then said.

Drawing attention to warnings that Dr Ambedkar had sounded in his iconic speech as chairman of the Drafting Committee in the Constituent Assembly on November 25, 1949, Justice Gavai quoted him as saying: “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value.”

Ambedkar’s warnings

“How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life?” Dr Ambedkar had then asked, adding, “If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”

Justice Gavai, a staunch Ambedkarite himself, also lamented that it took 40 years for India to recognise Dr Ambedkar and bestow on him the Bharat Ratna, which only added prestige to the highest civilian award of the country.

“The Supreme Court has described Article 32 as the cornerstone of the democratic edifice raised by the Constitution. This year is the 75th year of our Constitution and it is the appropriate time to revisit our Constitution,” said Justice Abhay S Oka while addressing the gathering with several judges, present and past, senior members of the bar and law students in attendance.

'Constructive criticism welcome'

Before reflecting on Article 32, Justice Oka said he welcomes constructive criticism of the judiciary and judicial approach and referred to three questions put across to him in a concept note before the beginning of the programme.

“In first case, under what circumstances does the Supreme Court entertain Article 32 petitions and when not, where ‘when not’ is the most dangerous part of it. This second is, again very difficult, is what are the differences in jurisdiction in Article 32 and Article 226 read with section 482 of the Constitution of India, and third that is the most important, what explains the fact that the Supreme Court has entertained Article 32 petitions in some cases and not in other cases which is the most difficult question of the three,” said Justice Oka, throwing in some light banters in between to pep up the discussion.

Reflecting on his days as a practising lawyer, he said when he used to argue second appeals in the high court and raised very difficult substantial questions of law under Section 100, his appeals were dismissed. “There are some tendencies to summarily dismiss those second appeals because it was very difficult to answer those substantial questions of law,” Justice Ok reminisced.

If you look at these questions, at the first rush, the issue at hand is very simple. Obviously, someone will argue that on plain reading of Article 32(1) the questions framed will not arise at all because Article 32 is part of Chapter III containing fundamental rights. So, it is a fundamental right to seek a remedy to enforce a fundamental right,” said Justice Oka, coming back to those three question put before him.

'No uniform judicial approach needed'

Justice Oka was candid enough to admit and said that it was very difficult to answer these three questions. He went on to quote some of the landmark judgments of the Supreme Court to address the jurisdictional issues.

He spoke at length on how the apex is burdened by thousands of pending cases before the apex court and the court has to set its priorities where the judiciary has to apply discretion which appeal to take up for hearing under Article 32. A businessman has also been given equal right under Article 32 to file an appeal so have poor convicts languishing in jail for years and who have not been granted permanent remission despite a policy of their states.

In such a scenario, people may suggest vis-a-vis priorities of the top court that a rigid test should be laid down for invoking Article 32 and only those cases should be entertained by the Supreme Court which pass the muster, Justice Oka said.

“Then it is possible to say that on our own we are circumscribing such a jurisdiction on us. We are curtailing our own power by laying down the test,” he warned, emphasising the need for the judiciary to debate on such questions.

'Democracy has to be representative'

In his brief take on Article 32 and its importance to the Backward Classes including SC/ST, OBC, religious minorities and women, Senior Advocate KS Chauhan buttressed the need for providing adequate representation to these communities which however is being curtailed by the highest judiciary.

“I must begin by saying what does Independent India a country based on the rule of law and democratic principles mean to the Backward Classes?” Advocate Chauhan asked and went on to allude to the refusal by Americans during the American Revolution to pay taxes to their colonial government unless and until they had representation in the administration, which gave the world the well-recognised principle of ‘no taxation without representation’.

“The ultimate objective of independence of a country is to vest the functioning of the country in the hands of its citizens. In other words, to give full representation to its citizens in managing the functioning of their country,” said the senior advocate.

Before questioning the tendency among the highest judiciary to sidestep previous judgments by superior benches in matters of reservation in his parting shots, Chauhan sought the intervention of the Supreme Court to seek review of the implementation of reservation in letter and spirit.

'Ambedkar’s legacy needs to be protected'

Vouching for the need for a dialogue between the bench and the bar to understand each other better outside the framework of the courtroom, noted lawyer and human rights activist Indira Jaisingh said, “Now, it is the only Constitution in the world which has direct access to the Supreme Court [through Article 32]. There is no other constitution in the world which has guaranteed access to the Supreme Court.”

Briefly touching upon the distinction between the writs of the Supreme Court of Indian and that of other countries, the former Additional Solicitor General of India (ASG) called the Indian Constitution a transformative constitution which attempted a peaceful transformation of a country ridden by inequality, poverty, and ignorance to a situation of equality of opportunity and equality before law.

In her parting shot, Singh questioned the subjective interpretation of the highest judiciary of fundamental right against discrimination on grounds of religion, race, caste, sex or place of birth vis-à-vis Dalits.

The lecture was organised by the Society for Constitution and Social Democracy (SCSD) in association with The Leaflet, an online periodical focused on legal issues.