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An estimated 6-minute read

The Constitutional disposition of then people of India

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Like a man write his WILL and wish that after his death his properties shall be given to these people, it appears to me that the mandate of Constitution represents the WILL of our freedom fighters to which we the contemporary people of INDIA are enjoying the legacy of Independence and breathe fresh air of freedom. Nevertheless, the bounden duty remains on our High Courts & Supreme Court to secure that WILL of the testators is given effect to.

In our vast, beautiful, geographical landscape of Independent INDIA, i.e. Bhaarat, again, the Constitution of INDIA, which came into existence on 26th January 1950, is the supreme & fundamental governing volume. This epic governing volume makes a categorical announcement in the introductory passage that people of INDIA are the architect of this volume. The announcement assumes significance because by this announcement, the framers of our constitution propose to acknowledge and give tribute to selfless sacrifice of every men & women who devoted their life for the independence of INDIA.

The origin & the authority of the Indian legislatures, of the Indian govt, of the Indian judiciary and of the Indian bureaucracy flows from this “Peoples' Governing Volume”.

Every injunction of this governing volume represents the wishes and ambitions of our countless freedom fighters; and our law makers, the government, the Indian judges and the bureaucracy owe their origin & discharge their all responsibilities while taking inspiration from this “Peoples' Governing Volume”.

And therefore I will say that this fundamental governing volume should not be read and interpreted like any other statutes of legislatures. This fundamental governing volume is to be read and interpreted keeping in mind the aspirations & demands of people then who were instrumental to our national freedom movement, the aspirations which can be found in various injunctions of this fundamental governing volume.

And therefore, should this governing volume, i.e. constitution of INDIA and the legislations, laws, bye laws, rules, regulations, resolutions, policies, notifications that get sanctity or flows from the constitution itself, be read & interpreted overlooking the events that has characterized our national movement and which paved our way to Independence on 15th of august 1947 ? And, should the Constitution of INDIA and the legislations, laws, bye laws, rules, regulations, resolutions, policies, notifications that get sanctity and flows from the constitution itself, be read & interpreted while continuing the discriminatory behavior, non transparent & suppressive policies of governance that were existing at british times.

In my considered view, the Constitutional courts, while dealing with any issue of constitutional importance before it for adjudication, while looking at the relevant words of the constitution, should also look behind the words of the constitution, i.e. what is the history behind those words, i.e. the court may look into historical national event relevant to the issue at hand.

Like for example-
Without turning the pages of history, it can very well be said that during colonial times of British, the people of INDIA were not having any say nor they were knowing how appointment of judges were made. Those were the judges who has conducted farce trial of Balgangadhar Tilak and sentenced him for sedition and ordered the hanging of our young beloved Bhagat singh. Therefore, while constitutional courts ventured to decide on issue of appointment of judges, should consider answering this question- should it be presumed that the then people of INDIA has decided that colonial opaque practice of appointment of judges be continued ? should it be presumed that people have decided that they will have no right to know how judges will be appointed ?

Also, it comes to my mind that Bhagat singh, Bal gangadhar Tilak, Mahatma Gandhi, Subhash Chandra Bose, Maulana Azad and many countless brilliant laid down their entire life to seek freedom from British rule, not because for the sake that they were white Englishmen, but because these white Englishmen were practicing discrimination, inflicting merciless exploitation on Indian poor lot and devising suppressive penal laws towards Indians. The British govt decision making process were non transparent and Indians were not consulted. Britishers were told to go back not because merely we wanted our men at place of power but because it was seen that Britishers didn’t gave dignity of life to the Indians.

Our then national leaders thought that if INDIA will be ruled by its own people, there will not be any discrimination, there will be no exploitation and no suppression that is existing in British colony. It was thought that if Indians will rule, every policy of discrimination, exploitation & suppression will be repealed at the threshold.

It comes to my mind a stray thought that if our then leaders were short sighted to have thought that Indians will govern their fellow brothers & sisters with great care & respect. There is hardly any need to establish that people of INDIA are worse governed by their own counterpart.

It is painful and equally frustrating to see that we the Independent people of INDIA have in many respects continued with British system of ruling. The first thing that immediately comes to my mind is liberty of people vis a vis personality of Police. In British times, then people were so scared of then police for they have assumably and presumably given super powers to arrest and put any one in the lock-up. Freedom fighters and inconvenient persons were put behind bars on the pretext of non bailability of offences.

Nothing much has changed in modern Independent INDIA. We the people yet are so afraid of police for they have assumably and presumably continue to have super power to arrest and detain anyone in the lock up. In today Independent INDIA, a man is liable to be arrested merely on a complaint of non bailable offence if so registered with the police.

Today, we have forgotten that these were the issues of liberty for which our then leaders and countless people have fought with the British. Our govt still blindly follow bailability of offences and interfere with most cherished i.e. liberty of a individual. Whereas we are though gifted with shield of landmark Judgment given by Hon Supreme Court in Joginder Kumar case in 1994, yet arrests are effected with fascination of ignorance. In Joginder Kumar case Supreme Court has given clear guidelines for arresting any one. Readers may check this link. one has to copy and paste to get access to this link. http://commonlaw-sandeep.blogspot.com/2009/06/final-word-on-law-of-arrests.html

I will say that we the people, though enjoying fruits of Independence and also enjoying public holidays earmarked in the memory of our brilliant freedom fighters, but otherwise we have severed our ties with history of freedom struggle and we have merely moved forward and we have forgot the issues for which the freedom was sought from the Britishers.
It also feels that we the people of INDIA have not properly understood our freedom struggle or perhaps the history is not told to us in the right way. Moreover, it also comes in the mind that this “People's Governing Volume” is interpreted like any other act of legislature.

I will also add here that "a constant affair with thy nation" should become personal obligation of every Indian citizen.

Sandep Jalan(advocate)

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