This article has been written by Oishika Banerji, from Amity Law School, Amity University, Kolkata. This is an exhaustive article dealing with the everyday life of law in the Indian republic.
Table of Contents
Introduction
India, a Sovereign, Socialist, Secular, Democratic Republic State, has been gifted with the largest Constitution in the world which is inclusive of 448 Articles and 12 Schedules divided into twenty-five parts. The Constitution of India has been through 104 amendments according to the times and its needs. The Constitution, the mother of all Indian laws, lays down certain basic principles that govern the regulation of all other statutes in the nation. The amalgamation of foreign Constitutions with an Indian perspective, the Indian Constitution, after being adopted in the year 1950 by the country and its people, has been adjusting itself to the everyday lives of the people of this country. The amendments that have been brought about have been so made to promote people’s welfare. The Government of India has been provided with three wings, the executive who executes the law, the legislature who frame and legislated the laws and the judiciary who takes care of the application and implementation of such laws. Each of these wings carries out their functions and also keeps the check on the functioning of the other two organs. The Indian Constitution is a combination of both unitary and federal form of government and is, therefore, often recognized as quasi-federal. Although the word quasi-federal is nowhere mentioned in the Constitution, it is only in everyday working that such a form of government can be viewed. The Indian Judiciary helps in the regulation procedure thereby delivering justice to the common citizen and making the rights guaranteed to the citizen by the Constitution enforceable to look after infringement of such rights if arise and thereby remedy any kind of injustice. The judiciary has passed several judgments to throw light on the everyday working of law in the Indian Republic. What can be inferred from the above discussion is that well-framed laws are existing already and new laws are being added to the list, what is remaining in its application is when the laws will be provided with meaning for their existence in the nation.
Constitution of India
It was on the 29th of August,1947, that a Drafting Committee was appointed by the Constituent Assembly to work on the framing of the Indian Constitution. Under this, various other committees were formed to look after several aspects which will be included in the Constitution. On 26th November 1949, the Constitution was adopted and the same came to force on 26th January 1950 which, from then, has been celebrated by the nation as the Republic Day. The Constitution has not only been merely a book of rules, laws, and regulation but the bible for the country. The Constitution has been the combination of several important elements which are discussed below.
Preamble
The very essence of the Indian Constitution is the Preamble. It is not a set of rules or laws but it is the purpose for which the Constitution has been brought to life. The Preamble constitutes of the following ingredients:
- The enacting clause responsible for bringing the Constitution into effect.
- It provides the basic and the necessary rights that India has gifted to its citizens.
- It lays down the form of government which the country will have.
- The Preamble provides light to the origin of the Constitution and the sources of the same.
The Preamble has evolved to be a part of the Indian Constitution through several case laws and the court’s judgement. It was in the case of Re Berubari Union and Exchange of Enclaves where the Supreme Court was of the opinion that the Preamble is not a part of the Constitution of India and thereby cannot be considered as the source for substantive powers. Such an observation by the apex court was scraped off by the apex court itself in the landmark judgment of Kesavananda Bharati v. The State of Kerala. In this case, the Supreme Court was of the opinion that the Preamble is indeed a part of the Constitution. The fact that the Preamble was given a structure after the formation of the Constitution in order to know whether the Preamble will be in alignment of the Constitution is the very reason which says that the Preamble is a part of the Indian Constitution. Hence the observation of the court, in this case, was held to be correct. Further, in the case of L.I.C of India v. Consumer Education and Research Centre, the Supreme Court of India opinionated that the Preamble is not only a part of the Constitution but rather an integral part of the Constitution.
Fundamental Rights
The Fundamental Rights are another set of elements that form an integral part of the Constitution. The source of the same has been the Constitution of the United States. Fundamental Rights provided in Part III of the Constitution guarantees a set of rights to the citizens which will help the people of the nation today to develop a personality and safeguard their dignity. In the case of M. Nagaraj v. Union of India, it was observed by the Supreme Court that the Fundamental Rights cannot be considered to be the gift of the State to its citizens but as the rights that must and should be provided to citizens of any Constitution for the fact that they belong to the human race. Thus, Fundamental Rights are applicable to citizens from their very birth. The Fundamental Rights have been provided in Articles 14 to 35 guaranteeing basic rights to the citizens of the nation. The importance of Fundamental Rights is that they help in protecting the rights and duties of the citizens of the nation against the regulation of excessive powers by the executive or by the government to be precise. Fundamental Rights have been included in the Constitution in order to establish a government which abides by the law and not of men to provide equal rights and opportunities to both the majority as well as minority groups. In the case of Maneka Gandhi v. Union of India, the Supreme Court held that Fundamental Rights amount to be the set of rights that are cherished by individuals for they aim to protect them and create a space where the people can be able to develop a personality the way they want to.
Fundamental Duties
Along with Fundamental Rights, come Fundamental Duties as well. Every citizen of India has to follow a set of duties which he or she owes to the country. Like Fundamental Rights, Fundamental Duties are not enforceable in the court of law. Nevertheless, they are essential to maintain the integrity of the country as a whole.
Directive Principles of State Policy
The Directive Principles of State Policy have been laid down in Part IV of the Constitution for the regulation of governance in the country and for the states to apply this set of principles while framing laws. This set of principles is essential to establish a welfare state providing broader connotations to the functions of a state towards its people. These set principles are different from Fundamental Rights in a way that the former is not enforceable by the court whereas the latter is. In AIR India Statutory Corporation v. United Labour Union, the Supreme Court observed that the directive principles are enforceable by themselves and are elevated in their own way.
Separation of Powers
The doctrine of separation of powers symbolizes that the three organs of the government should be independent in their working. In India, this doctrine does not have strict enforcement and therefore, it will be correct to say that the organs of the government are independently independent but not interdependently independent. This has a positive side as well, for the country can work efficiently and effectively only if coordination exists among the three organs of the government as in the case of India. There have been several instances where the organs have been in conflict with each other because of overlapping functioning. In the case of C. Ravichandran Iyer v. Justice A. M. Bhattacharjee, the Supreme Court made an observation that one of the basic features of the Indian Constitution is the independence of the judiciary. Further in the case of Supreme Court Advocates-on-Record Association & Anr. v. Union of India, it was held that the very independence of the judiciary is a sine qua non of the democratic nature of the country and therefore the same must be ensured and the legislature and executive should be made to operate separately. The concept of Judicial Review also has additional importance that comes along with the separation of powers. The judicial review ensures independence of the judiciary. It is important to keep a check on the functioning of the other two organs of the government namely the executive and the legislature. Thus, the debate as to the meaning of the concept in India is still rolling for a solution.
Rule of Law
In the case of Vineet Narain v. Union of India, the Supreme Court was of the opinion that the essence of rule of law is how high a man be, he can never be above the law. Thus the court kept intact the concept thereby declaring the supremacy of law. Rule of law was declared to be the basic feature of the Constitution in the case of Indira Nehru Gandhi v. Raj Narain. Further in A Registered Society v. Union of India, the Supreme Court observed that there should be a reconciliation between the State’s needs, the duty executed by the State officials and the rights provided to the citizens, in order to not disrupt the establishment of rule of law in a welfare State. In the case of India, the Constitution is considered to be supreme and therefore whatever legislative and executive powers are to be regulated should be carried out strictly according to the provisions in the Constitution. This has been laid down under Article 245 of the Constitution. The Fundamental Rights, Duties and Directive Principles of State Policy that have been discussed earlier can be regulated and implemented only if there is the presence of rule of law. Therefore in order to ensure equality, fraternity, dignity and justice to the citizens of the country, the rule of law is to be applied seriously in the country.
Principles of Natural Justice
It is nowhere mentioned in the Constitution about the principles of natural justice but the two Articles of the Constitution which uphold this principle are Article 14 and 21. While the former guarantees equality among equals and equal protection of the law, the latter guarantees right to life and personal liberty to every individual in the nation. Principles of Natural Justice is based on two grounds:
- Audi Alteram Partem that can be broadly meant as everyone should be heard.
- Nemo in propria causa judex, esse debit which means that no person should be a judge of his own case. This can also be termed as the rule against bias.
In the case of the State of U.P. v. Vijay Kumar Tripathi, the Supreme Court held that the principles of natural justice must be read and carried out accordingly just like any other law or statutes. Thus, the principles of natural justice are indeed an integral part of the Constitution of India.
These are the basic elements of the Constitution of India, the supreme guidance for the framing of all other statutes and legislations in the country. These elements help in producing laws for the citizens in the country and therefore the application of the law takes place under the purview of these elements. But is the application of law as easy as writing and discussing it? This is the issue that is highlighted when the everyday life of the law is viewed. Possibly the Constitution would not have been amended so many times if there weren’t any loopholes in the application of the law and similarly the society would not have raised questions on the law so many times from the day it took its course. India is such a country where many laws which are present do not see the light of the day and subsequently are scrapped because they remain unused. The Supreme Court has passed several judgments that celebrate the Preamble of the Constitution, but are those judgments ever applied to the citizens of this nation remains a doubt. To observe and know about the application and the implementation of the established Constitution and laws associated with the same, the everyday life of law in the Indian Republic should be considered.
Everyday life of law in the Indian republic
India is a diverse nation, and therefore it consists of people from all classes of life, different religions, beliefs, thoughts, colour, and gender. India is a developing country and agriculture being one of the important sources of income, reveals the fact that along with urban areas, rural India exists as well. Thus the Indian Republic consists of a population of rural people along with urban regions. Dr. B.R. Ambedkar, while acting as a chairman of the drafting committee, repeatedly mentioned that the Constitution should serve its purpose, otherwise it will just remain in books and have no meaning to serve. It has been seventy-three years since the country got independence and became capable enough to frame its own laws and regulations. But till now there are several stumbling blocks in the legal field of the country. If an everyday life of the law is analysed, there will be several instances which will prove that Indian law is indeed strong to hold the integrity of the Constitution along with that there will always be a scope for improvement and development which the current accuracy of law cannot meet with the same. The instances associated with the latter are more than that of the former.
Equality Before Law
Article 14 of the Constitution guarantees equality among equals and equal protection of the law. There have been several judgements that are associated with this provision providing a meaning to the same. The Citizenship Amendment Act that caused huge turmoil in the entire country with protests, marches, heated debates and deaths of several people was held to be violating the provisions of Article 14 by being arbitrary and processing unequal treatment to people in the nation. Nevertheless, the Act was adopted and has been enforced. By providing the example of Citizenship Amendment Act (CAA) what necessarily is being focused is that although there has been provision for rights, duties, principles and rules, when it comes to the application everything can be turned upside down. This not only hampers the very essence of the enforceability of the Constitution but also the welfare of the people in the nation. While CAA is just one instance which was thought to violate Article 14, there are other instances of similar kind of infringement of the rights guaranteed to the citizens. Women have been a minority group and the Constitution, therefore, provided for protection for them. Even then issues as to similar wages to both male and female working in a firm or as a labourer, social issues which include violation against women in several ways are still existing. Therefore equality in terms of gender is another field guaranteed by Article 14 which could not be achieved yet. The Sabarimala issue is another such instance where Article 14 was considered to be violated. Although the Supreme Court in its judgment made it clear that both females, as well as a male of all ages, are permitted to enter the temple, the temple authorities did not welcome the judgment. In such cases along with the violation of Article 14 comes violation of rule of law as well which is the essence of the very Constitution. Therefore, the picture of the everyday life of the law is indeed different from what is provided in books.
Caste Discrimination
Dr B. R. Ambedkar, while framing the Constitution with all other committee members, was with the opinion that as India has been the home for people coming from different castes and traditionally speaking there has always been segregation among those castes with the higher class society oppressing the Dalits as untouchables, there was a need to protect the same and provide them with equal opportunities to be at par with the higher class. This was the reason that certain Articles were included in the Constitution of India which provided special status to them and declared untouchability prohibited under Article 17. Further, the suppressed classes received recognition in the form of Schedule Caste, Schedule Tribes, and Other Backward Classes to be taking part in all kinds of activities with reservation in employment, education and other aspects of life. With laws being present, reservation being provided also the aim of eliminating the long-existing caste system has not been successful yet. The practice of untouchability is prevailing in several parts of the nation with Dalits suffering unnecessarily. They are not even aware of the existing laws nor can they avoid the suppression of them. In place of them, reservation is being used by those who are in no need of the same. This kind of growing discrimination and class conflict is rather detrimental for the establishment of the Constitution in everyday life.
Right to Life
Right to life is a basic fundamental right provided under Article 21 of the Constitution. This right has been subject to violation several times by the government of the nation. Right to life is a kind of right that is applicable to all citizens on a daily basis. Infringement of the right to life is a contravention of human dignity as well. Although it is true that this right helps the citizens to live freely without any hesitation, not everyone is subject to this right especially those who are not aware of the existence of such a right. The farmer’s rally that was carried out in Maharashtra for the sufferings of the farmers related to fall in harvest and payment of loans, was an illustration of such infringement of Article 21. It is not normal for these farmers to file a writ petition claiming the infringement of the rights due to lack of knowledge and financial support. Therefore, although there is the law, the absence of the same is felt far and wide throughout the nation. The present scenario of the country also raises several questions on the existence of the right to life. As the country is under lockdown due to the global pandemic, several migrant workers and labourers who worked in different states for earning livelihood were stuck at their places facing hurdles to reach their homes due to the lockdown. Although the government made an effort and allowed transportation services for them, several migrant workers had to work their way home travelling miles barefoot. Such instances are from the everyday life of law in India.
These three spheres are the most important areas where the existing laws remain theoretical and where the absence of law is mostly felt. If the laws were made according to the elements of the Constitution as mentioned earlier, then there must not arise any scenario where the laws can become useless. The problem does not lie on the laws which are existing and present, but on the very fact that the same is least applied in the country. Indian judiciary is an organ of the government which is well framed and structured. The District courts followed by the High Courts and the Supreme Court which is the highest court in the country are working significantly with efficiency to remedy injustice in the country. The issue is that not everyone can approach the court to speak about their problems due to several chains that are restricting the person from doing so. The country has developed with technology, economically advanced sectors, global trade but the country still needs time to look after the working of its laws. It has been very well mentioned in the Constitution that there must not be any kind of restriction in the exercise of Fundamental Rights guaranteed to the citizens of the nation but every day there is an infringement of rights in one way or the other. Nobody sees that neither is it possible for the courts to solve every problem of the citizens always. Therefore, the only way out for increasing the efficiency of laws is by applying it, understanding it and implementing it. The Constitution, therefore, remains an illusion for several people in the nation until it is brought to practice correctly. This is what is reflected in the everyday life of law in the Indian republic.
COVID-19 and the discrepancies in Indian law
The global pandemic which affected India, as well as other countries, has made us realize the loopholes in law applied in everyday life and the role of the government in the same. The entire regulation that is taking place in the country at present is being handled solely by the executive. This, indeed, is the first step of violation of the rule of law. Due to COVID-19, the executive wing of the government took into consideration two statutes to regulate the entire scenario in the country. One being the Disaster Management Act, 2005 while the other is the Epidemic Diseases Act, 1897. Both these Acts do not involve any provision regarding epidemic but still, the same Act has been applied for regulation of the epidemic. The judiciary of India carries the responsibility of keeping in check the powers of the executive and the legislature. But in this situation, such responsibility is not being carried out by the judiciary. When it came to the application of these statues, there was no discussion in the Parliament regarding the same. Also, no justification for the application of the laws was provided to the citizens. Further, the judiciary was silent when it came to issues regarding the migrant workers and the regulation of labour laws. Such discrepancies on the part of the judiciary during this time of the pandemic is not expected by an organ of the government, but yes this is what the everyday life of the law in Indian republic is.
Conclusion
The everyday life of law in the Indian republic is different from what is written in books. When both are compared, a lot of differences are noticed. There is a lot of gap between the law that has been written in books and the law that is applied and this gap is increasing every day. Such a gap can be filled by proper implementation of the same. The laws look good when they are in the books but as soon as they receive a practical application, they no longer remain to look good. Issues arise from the implementation of the law and the people are very less connected with each other. Further, the implementation is not easy unless there is a coexistence of the government and the judiciary. The present situation of COVID-19 has made us realise where we are at present and what all developments are required. The Constitution of India provides us with well-established laws and the principles governing those laws. In order to keep intact the Constitution of India, the laws need to be put to force in a real way, the way it can be applied in everyday life. The awareness of the law is necessary to be present in every citizen the burden of which will lie on the part of the government. Education of laws is something that is lacking in a lot of people and that is the reason a lot of people are not even aware of the amendments brought in the existing laws. Therefore, the most essential thing that is inferred from the everyday working of law in the Indian republic is the lack of education about the laws which restrains a lot of people from getting justice.
Reference
- https://verfassungsblog.de/an-executive-emergency-indias-response-to-covid-19/
- https://www.theregreview.org/2020/05/04/bhatia-indias-executive-response-covid-19/
- https://m.thewire.in/article/law/supreme-court-judicial-discipline/amp#referrer=http s %3A%2F%2Fwww.google.com&_tf=From%20%251%24s
- https://www.foreignaffairs.com/reviews/capsule-review/2019-04-16/peoples-constitution-everyday-life-law-indian-republic
- https://indianculturalforum.in/2019/03/12/the-everyday-life-of-law-in-the-indian-republic/
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