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The Constitution: For being the great repository of our ideals

'It is under the Constitutional dispensation that India's much acclaimed democracy has flourished'

August 18, 2008

Indira Jaising, the Supreme Court lawyer and the first woman to be designated senior advocate by the Bombay high court, on the beauty and promise of the Constitution.

As a lawyer it is the only tool I am left with to fight for the downtrodden. It promises justice, social, economic and political. It promises equality of status and opportunity. It promises non-discrimination on the basis of sex, religion or cast. It promises, the most valuable of all rights, the right to life. What more can one ask for?

It is this Constitution that had the power to reinvent itself by creating the theory of the basic features of the Constitution which cannot be amended, giving us the possibility of putting a check on the arbitrary power of the majorities to crush the rights of citizens.

It is under the Constitutional dispensation that India's much acclaimed democracy has flourished, no doubt with all its flaws. It is the Constitution that has repeatedly allowed the electorate, the aam aadmi to throw out autocratic governments through the ballot, rather than through the barrel of a gun.

Members of Parliament and prime ministers have been unseated by due process of law. Bonded labour has been liberated, women have sought refuge from sexual harassment at the work place, and the environment has been protected all by an expansive interpretation of the fundamental rights. New rights have been created like the fundamental right to primary education.

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One may argue that these promises have not been redeemed. Yet the very promise is important most of all for the dispossessed. The poor have nothing but the law on their side. The rich do not need the law, they have money with which to corrupt, power and prestige.

The promise of the rule of law is the only weapon in the armoury of the dispossessed and Constitutional history is history to holding the law to its promises. It is therefore an exciting journey.

But has it been an entirely positive process? No. The Constitution could not ensure that the bribe-takers of Parliament are prosecuted, thanks to the doctrine of parliamentary privilege. It could not ensure that corrupt judges are impeached. It could not ensure that money power does not play a role in keeping governments in power. It could not insure that the right to life would mean that there would be no death penalty, Dhananjay Chaterjee had to be sent to the gallows and Afzal Guru awaits the execution of the death penalty.

By far the most important failure of the Constitution has been the inability to deal with the movements of/ for Constitutional autonomy in Kashmir and the Northeast, leading to the imposition of the Armed Forces Act, a situation akin to martial law.

The massacre of Sikhs in Delhi and the genocide of minorities in Gujarat in 2002 will remain the striking proof of the domination of non-State actors over the rule of law. They also demonstrate the paralysis of the legal system to deliver justice to marginalised groups facing annihilation due to State inaction.

To come back to the question, is there beauty in the Indian Constitution, the answer is yes. When was beauty ever an unmixed blessing? Promises of justice can be an illusion, but a necessary one, inviting us to redeem the promise of the law.

Indira Jaising represented those affected by the Bhopal gas tragedy in their claim for compensation against Union Carbide and has just been elected to the United Nations's Committee on the Elimination of Discrimination Against Women. She was awarded a Padma Shri in 2005. The distinguished lawyer contributed this article to rediff.com

Also read: 'Make the Indian Constitution the model'

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