Supreme Court upholds constitutional validity of Section 6A of Citizenship Act, 1955

In Re Section 6 A of the Citizenship Act, 1955, Supreme Court's bench of 50th Chief Justice Dr. Dhananjaya Y. Chandrachud, Justices Surya Kant, M.M. Sundresh, Jamshed B. Pardiwala, and Manoj Mishra grappled with the question as to whether Section 6A of the Citizenship Act, 1955 violates Articles 11 (power to regulate citizenship), 14 (equality), 29 (protection of minority interests), 326 (right to vote), and 355 (duty of Union to protect states) of the Constitution. Justice Pardiwala authored a dissenting judgment and held Section 6A to be invalid. He held that Section 6A is not similar to Articles 6 and 7 because Section 6A(3) of the Citizenship Act puts the burden on the State to determine suspected immigrants as opposed to requiring individuals to register for citizenship. He observed that unlike Article 6, Section 6A does not specify a cut-off date till when applications for citizenship could be made. The responsibility of identifying foreigners and the lack of a cut-off date made Section 6A different from Article 6.

Justice Pardiwala observed that there was no time limit by when all immigrants who entered Assam between 1966-71 had to be identified and could claim the benefits of Section 6A. He noted that Section 6A(3) does not permit an immigrant to voluntarily seek citizenship. immigrants have to wait for a reference to be made by the State to the Foreigners Tribunal. Concluding his opinion, he also observed that the requirement that the immigrant be an “ordinary resident in Assam” was vague and encouraged immigrants from neighbouring Indian states to immigrate to Assam to claim the benefit of Section 6A(3). He observed that the goal of Section 6A(3) was the effective identification of immigrants between 1966 and 1971. He ruled that the above-mentioned flaws of Section 6A meant that the provision no longer achieves this goal and is hence unreasonable and unjustified. He ruled that the circumstances that existed at the time of the Assam Accord do not justify the continued operation of this arbitrary mechanism of establishing citizenship. He held that the Supreme Court has the power to mould relief to do complete justice to avoid the possibility of chaos and confusion that may be caused in the society. Therefore, he declared Section 6A as unconstitutional with prospective effect to ensure that immigrants who have already claimed the benefit of Section 6A are not deprived of citizenship.

In the aftermath of the Bangladesh Liberation War in 1971, there was an inflow of immigrants into Assam. In response to protest against the inflow of immigrants, the Assam Accord was signed between the Union Government and the protesting associations on August 15, 1985 during the tenure of Rajiv Gandhi, the 6th Prime Minister of India. Subsequently, Parliament inserted Section 6A in the Citizenship Act in 1985 to provide legislative effect to the Assam Accord.

Under Section 6A, immigrants of Indian origin who entered Assam before January 1, 1966 were recognized as Indian citizens. Further, those who arrived between January 1, 1966 and March 24, 1971 were to be granted citizenship subject to the fulfillment of certain conditions. These conditions were: (i) their detection as a ‘foreigner’ by the Foreigners Tribunal; (ii) their continuing to be an ordinary resident of Assam since entering Assam; and (iii) deletion of their names from the electoral rolls for ten years. All those who satisfied these conditions were to be granted citizenship after ten years.

Numerous writ petitions filed under Article 32 challenging the constitutional validity of Section 6A. They contended that: Parliament was not empowered to enact such a law under Articles 6, 7, and 11 of the Constitution; Section 6A violated the right to equality and the rights of minorities under Articles 14 and 29; and the duty of the Union to protect the State of Assam from external aggression under Article 355 of the Constitution. On December 17, 2014, a Division Bench of the Supreme Court noted the important constitutional issues in the case and referred the matter to a 5-Judge Constitution Bench.

A 5-Judge Constitution Bench of the Supreme Court by a majority of 4:1 has upheld the constitutional validity of Section 6A. Justice Surya Kant on behalf of himself and Justices Sundresh and Mishra authored the majority opinion. Chief Justice Chandrachud authored a separate concurring opinion.

The majority opinion issued the following directions:

1. The directions issued in Sarbananda Sonowal v Union of India (2005 INSC 287) should be followed to deport the illegal migrants who entered after 1971.

2. The provisions of the Immigrants (Expulsion from Assam) Act, 1950 should be integrated with Section 6A for identifying illegal immigrants.

3. The current statutory framework and tribunals for identifying illegal immigrants in Assam are inadequate and must be enhanced to enforce the legislative intent of Section 6A in a time-bound manner.

The Supreme Court held that courts have the power to review a foreign policy when it is in the form of a statute. The Court held that the doctrine of laches (delay) would not proscribe the petitioner’s claim as it affects the larger public interest and the constitutionality of a provision. The petitioners had approached the Court several years after the enactment and insertion of the Section 6A in the Citizenship Act.

The majority has held that Section 6A is in sync with the fundamental purpose of Articles 6 and 7 of the Constitution, which seek to provide citizenship to individuals of Indian origin who suffered from political disturbances in neighbouring nations. 

Notably, the provisions in Part II of the Constitution (Articles 5-11) only prescribe who would be granted citizenship at the commencement of the Constitution. Citizenship after the commencement of the Constitution would be governed by Parliamentary law. Chief Justice Chandrachud held that Article 246 read with Entry 17 of List I in the Seventh Schedule confers Parliament the power to enact laws on citizenship.

The Supreme Court held that Section 6A does not violate Article 14 of the Constitution. Article 14 allows the legislature to classify individuals into different groups and treat them differently but such classifications must be based on an intelligible differentia and have a reasonable connection to the purpose sought to be achieved by classifying individuals. Assam, with a high inflow of migrants and a small area, faces unique challenges in comparison with other states and therefore treating the situation in Assam is an intelligible classification. The federal structure allows the Union Government to have separate treaty arrangements with the states and Section 6A was inserted to bring the Assam Accord into effect. This provides a sufficient reason for Parliament to have enacted Section 6A solely for the State of Assam.

The majority opinion found that there were historical reasons for the different cut-off dates and legitimate reasons for categorising migrants. Given the fact that those who suffered political turmoil and entered Assam before 1 January 1, 1966 were already included in the electoral rolls and March 25, 1971 marked the date of beginning of the Bangladesh Liberation war and the date of grant of Bangladeshi citizenship under the Bangladesh Citizenship (Temporary Provisions) Order, 1972, there was a valid rationale for the cut off dates. Therefore, Section 6A is not arbitrary because there was careful consideration behind the different cut-off dates. The term “ordinary residence” in Section 6A is not quite ambiguous to be deemed undefined.

In his concurring opinion, Chief Justice held that Section 6A contemplated rules and sufficient infrastructure to ensure that immigrants of Indian origin from Bangladesh could acquire citizenship. Section 6A continues to serve this goal however, increased State capacity is needed to ensure the effective implementation of the provision. However, this does not render Section 6A unconstitutional. The majority acknowledged that Assam has a distinct language, culture and script which are entitled to be preserved under Article 29(1). However, it found that Section 6A provides for timely detection and deportation of illegal immigrants. Thus the challenge should be against the non-implementation of the statute and not its constitutionality. Chief Justice observed that the mere presence of different ethnic groups cannot violate the right under Article 29(1) and various constitutional and statutory provisions provide for the protection of their distinct culture. The majority acknowledged that the Union Government holds a duty under Article 355 to protect its citizens from external aggression and internal disturbance. Although unabated migration could constitute external aggression, Section 6A does not promote unrestricted migration. It provides a regulated approach for the grant of citizenship to migrants who entered before 1971 and this cannot amount to external aggression. Chief Justice observed that while Article 355 does cast a duty on the Union Government, there is no corresponding right under Article 355 and thus a legislative enactment cannot be challenged on the ground that it breaches Article 355. Considering Article 355 as a separate ground for judicial review would defeat the object of the provision and the federal structure. The judgement was delivered on October 17, 2024.

250 Years of Supreme Court of Judicature at Fort William

The enactment of the Regulating Act of 1773 and the Act of Settlement were two major enactments in the Indian Legal History.

The Supreme Court of Judicature at Fort William, Calcutta was founded in 1774 by the Regulating Act of 1773. It replaced the Mayor's Court of Calcutta. It was British East India Company's highest court from 1774 till 1862. 

From 1774 to the arrival of Parliament's Bengal Judicature Act of 1781 in June 1782, the Court claimed jurisdiction over any person residing in Bengal, Bihar or Orissa. These first years were known for their conflict with the Supreme Council of Bengal over the Court's jurisdiction. The conflict came to an end with Parliament's passing of the Bengal Judicature Act of 1781 which restricted the Supreme Court's jurisdiction to either those who lived in Calcutta, or to any British Subject in Bengal, Bihar and Odisha, thereby removing the Court's jurisdiction over any person residing in Bengal, Bihar and Odisha.

The jurisdiction of the court was only to the Calcutta region but extended to the people residing in the Bengal, Bihar and Orissa, if they were British and His/Her Majesty's subject.

Person, directly or indirectly, employed by the company or under the services of his Majesty's subject were under it's jurisdiction. 

The persons who voluntarily submitted to the supreme court. The similarity between the legislation of 1773-74 and the Charter of 1753 is obvious.

The cases exceeding the limit of 500 rupees were under it. 

But neither the Regulating Act 1773 nor the Charter of 1774, stated or give any hint related to the law, which should administer by the court especially in those cases which involve Indian as well.

The governor general and his council fell outside the jurisdiction of the Supreme Court and not under its ambit to hear anything against them for any offence committed by them in Bengal, Bihar, Orissa except in cases of the felony and treason.

Under the Regulating Act 1773, the King's Bench was eligible to hear cases of crime, misdemeanor and offences committed by Governor General or any member of his council or by any judges of supreme court and also these high officials are indemnified from the imprisonment under the supreme court's order.

The court of King's Bench could likewise require the governor-general in Council to examine witnesses in India and to send the records to England lie when cause of action involved the Chief Justice and other puisne Judges of the Supreme Court at Calcutta. When the proceedings were by Bill in Parliament concerning any offence committed against the Regulating Act of 1773, or any other offence committed in India, the Chancellor or the Speaker of the House of Parliament could issue warrants for the examination of witnesses in India. Parliaments power of requisition extended even in cases of capital offences, whereas the King's Bench could not order for the examination of witnesses in India when the evidence in question related to some capital offence. In criminal cases, court decided cases with the help of jury both the Grand Jury and Petty Jury.

The courthouse itself was a two storied building with Ionic columns and an urn-topped balustrade and stood by the side of the Writers’ Buildings. The building also served as the Town Hall of Calcutta at one time. It was demolished in 1792 to be replaced by the present building in 1832.

The first judges of the Supreme Court of Judicature at Fort William, Calcutta were:

Sir Elijah Impey, Chief justice from 1774 to 1783 on his recall to England for impeachment.

Stephen Caesar Le Maistre, Puisne judge from 1774 to 1777 on his death.

John Hyde (judge), Puisne judge from 1774 to 1796 on his death. the primary author of Hyde's Notebooks, a series of 74 notebooks that are a trove of information for the first years of the Supreme Court of Judicature at Fort William, the highest court in Bengal from 1774 to 1862. The originals of these are kept at the Victoria Memorial in Kolkata. Partial microfilms are held at the National Library of India, Kolkata. The digitized microfilm is available online. The originals, which vary slightly from the microfilm, were digitized in 2015 but have not been released as yet. 

Robert Chambers, Puisne judge from 1774 to 1783, Acting Chief Justice from 1783 to 1791 and Chief Justice from 1791-1798. He was one of the judges in the notorious case of Maharaja Nandakumar. He was a contributor to Hyde's Notebooks during his term on the bench of the Supreme Court of Judicature. The notebooks are a valuable primary source of information for life in late 18th century Bengal and are the only remaining source for the proceedings of the Supreme Court. Chambers continued the notebooks after Hyde's death in 1796.

Sir William Jones, Puisne judge from 1783 to 1794 on his death. His work, The principles of government; in a dialogue between a scholar and a peasant (1783), was the subject of a trial for seditious libel (known as the Case of the Dean of St Asaph. In the last of his essays: "On the Philosophy of the Asiatics" (Asiatic Researches, vol. IV, p. 164), he wrote: "The fundamental tenet of the Vedânta school consisted not in denying the existence of matter, that is solidity, impenetrability, and extended figure (to deny which would be lunacy), but in correcting the popular notion of it, and in contending that it has no essence independent of mental perception; that existence and perceptibility are convertible terms."

Sir William Dunkin, an Irish barrister turned puisne judge from August 14, 1791. He died in 1807.

Legislative Power

Supreme Court has authorized to make his own procedures and rules which help it in exercising his jurisdiction. But these rules were subject to the King-in-Council's approval. Governor General and Council has the power to make laws but that law should be registered under the Supreme Court and should be reasonable in nature and that law become effective only after the registration is done.

Miscellaneous Provisions

With the Regulating Act 1773 another change in the provision takes place that is, the Governor General and council and the Judges or the Supreme Court would not accept any kind of present; and no persons who is holding a civil or military office under the crown or the company, would accept any present. But this was not applicable to the cases of the Councilors, Surgeons or Physicians.

Procedendo: the ability of the Supreme Court to order the lower court to proceed to the judgment of the cases without specifying.

It was also a court of equity and court of record.

Ecclesiastical Jurisdiction

SC issue probates of bill for the British subjects who reside in Bengal, Bihar and Orissa for the British Subjects who resides in Bengal, Bihar and Orissa. Sc also had the power to issue the letter of administration if no executioner of the will is present then the SC had the power to appoint an executioner. With this it also had the power to appoint the guardians of the infants and insane children.

Admiralty Jurisdiction

The court had the power to try the civil maritime causes or the crime that has been committed upon the high seas in these cases petty jury sit to take the decision and crimes which takes place at offshore or on the ship at the offshore of the Bengal, Bihar, Orissa, such cases tried by the SC who come under direct and indirect employment.

Appellate Jurisdiction

Appeal from all the courts present at that time went to the SC and from here the appeal went to the kings-in-council if the case was of value more than Rs.1000.

Petition challenges fee charged by Bar Council of India for XIXth All India Bar Examination

Relying on the Supreme Court's judgment in Gaurav Kumar v. Union of India, a petition has been filed in the Telangana High Court challenging Rs.3500 +GST (12.60 INR) + Convenience fee (70 INR) as the fee charged by the Bar Council of India (BCI) for registering for the XIXth All India Bar Examination (AIBE-XIX). A general category candidate has to pay this fee. 

The petitioner argues that the BCI's fee of ₹3,500 is unconstitutional and violates the Supreme Court's ruling that enrollment fees must not exceed the limits set out in the Advocates Act. The petitioner also claims that the fee is arbitrary and has no legislative justification.

The Telangana High Court has asked the BCI to respond to the petition, and the matter was scheduled for further hearing on November 27, 2024.

The AIBE is a certification exam that assesses an advocate's ability to practice law in India. The fee structure for the AIBE is:

General and OBC candidates: ₹3,500

SC/ST candidates: ₹2,500 

The AIBE was introduced in April 2010 to improve the standards of the legal profession in India. 

Full Court of High Court to condole demise of Justice Ghanshyam Prasad

Justice Ghanshyam Prasad who was judge of Patna High Court during 24 January 2005-28 January 2009 is no more. A Full Court Reference is scheduled on the 27th November, 2024, in the Centenary Hall of High Court to condole his sad demise. A notice in this regard was issued by the Registrar General of the High Court. Justice Prasad used to reside at Kaushalya Estate, Bandar Bagicha, Patna. 

The Ministry of Law & Justice had issued a release on 20 January, 2005 appointing four judges to the Patna High Court including Rekha Kumari, Ghanshyam Prasad, Sayed Mohammad Mehfooz Alam, and Sadanand Mukherjee, in this order of seniority. 

His autobiography Me and My Truth: An Honest Story of a Judge was self-published in 2014. He was nominated as the Chairman of Web Journalists Standards Authority (WJSA) in July 2021. His autobiography Me and My Truth: An Honest Story of a Judge. Post retirement, he joined Twitter in June 2014 where he occasionally expressed his opinions. He wrote: "Customer care of reliance digital is hopelessly worthless.They do not reply query of customer. They simply keep mum" on 24 August 2020. Most customers will agree with his assessment. 

On 22 February 2020, he opined:"It is wrong to appoint no-judicial man as member of commission or tribunal.They cannot understand intricacies of law and write order properly.Such institutions are not substitute of judiciary.Just like "jhola chhap" can not be substitute of doctors." 

It is true that no-judicial persons cannot do justice with the work of tribunal and commissions. Tribunalisation of judiciary is undermining both the bar and the bench. Post

Notably, the 42nd amendment brought a huge change in the adjudication process of the country by introducing Article 323 A and 323 B in the Constitution of India.   The 42nd Amendment and its insertion into Part XIVA paved the way for tribunals in India. The amendment empowered the Parliament to enact laws which will provide for authority, jurisdiction and mode of operation of these tribunals and it also allowed for exclusion of jurisdiction of High Courts and civil courts except the Jurisdiction of Supreme Court under Article 136. Tribunalisation is an assault on the basic structure by violating the principal of separation of powers and independence of judiciary. The constitution does not permit the transfer of judicial power.

Sadly, in S.P. Sampath Kumar and Ors. Vs Union of India, the issue was regarding the constitutional validity of 42nd amendment and the Administrative Tribunals Act 1985 as they excluded judicial review. It was held that Judicial Review was part of basic structure of the Constitution but then it was also stated that if the constitutional amendment provides for an effective mechanism for vesting the Administrative Tribunals with power of Judicial review then it would not be unconstitutional even though it excluded the jurisdiction of High Courts. 

Significantly, in L.Chandra Kumar vs The Union of India, the court reiterated the fact that judicial review is part of basic structure of Constitution and the power of judicial review of High Court and Supreme Court under Article 226 and. Article 32 ensure independence of Judiciary. The ‘exclusion of jurisdiction’ clause in all the legislations which have been enacted under scope of Article 323A and Article 323 B was struck down. The tribunals can never be a true alternative of superior courts and hence the power of judicial review of High Court and Supreme Court can never be excluded.

But in Union of India v. R Gandhi, it was held that exclusion of jurisdiction of High Court is permissible and parliament has the authority to form tribunals through specific enactments and vest them with the jurisdiction to adjudicate upon the matters related to those specific enactments.  It was also stated that though the legislature can form laws prescribing eligibility criteria and kind of expertise required for appointment in tribunals, the superior courts have the authority to examine whether the eligibility criteria and qualifications prescribed for appointment of members is adequate enough to enable them to meet the purpose for which the given tribunal is constituted. 

This stance of the Supreme Court faces criticism from jurists because subjecting tribunal judgements to judicial reviews of High Court and Supreme Court is not enough given the fact that most of members are either appointed by executive or, are members of the executive. 

Also read: When tribunals undermine the judiciary

The Law Commission's report ‘Assessment of Statutory Frameworks of Tribunals in India’ observes: “though the disposal rate of the tribunals in comparison to the filing of cases per year had been remarkable — 94 per cent — the pendency still remains quite high.” It recommended that the writ petitions challenging the decisions of different tribunals in the country should be filed before a division bench of the High Court instead of the Supreme Court.

In 15 July 2019, Justice Prasad wrote: "I am shocked to find that newly constituted RERA Bihar manned by rtd. Bureaucrats is endulged in malpractices. They supposed to pass order for registration of project within 30 days but it kept pending for months. Obviously for ulterior motive. CM Bihar kindly take care of rera office which is indulged in malpractices. Many matters are kept pending for months with ulterior motives."

Justice Prasad was referring to the conduct of Bihar Real Estate Regulatory Authority (RERA), established under the Real Estate (Regulation and Development) Act, 2016. It's primary objective is to promote transparency, accountability, and efficiency in the real estate sector. Notably, RERA has not published it's Annual Report after 2018-19. Since March,2024, Vivek Kumar Singh, IAS is the Bihar RERA Chairperson. Prior to him, Naveen Verma, IAS was the Chairperson, RERA from May 14, 2021 to February 2024. His predecessor, Afzal Amanullah, IAS was Chairperson, Bihar RERA from April 2018 to May 2021. 

RERA was constituted to protect the interests of homebuyers, investors, and other stakeholders, and to regulate the real estate market in the state of Bihar. In terms of clause (g) of Section 2 of this Act. Exercising the power conferred by the third proviso to sub-section (1) of section 20 and first proviso to sub section (4) of section 43 of the Act, The Government of Bihar has designated The Principal Secretary, Urban development and Housing Department, Government of Bihar as the Regulatory Authority and The Bihar Land Tribunal, as the Appellate Tribunal respectively vide Notification nos. 348 & 349 and 346 & 347 dated 28th April 2017.

On the 6th of December, 2016, he wrote: "Judges ko sarkar antim pawdan pe rakhdiya hai.sabka pay pension revise hogya hai magar pata n Judges ke bare me kyo late ho raha hai?" Notably, All India Judges Association case in this regard is pending since 1989. 

Dr. Gopal Krishna

Legislature, Executive, Judiciary are trustees, agents which function and govern for benefit of citizens: Supreme Court

In State of Andhra Pradesh v. Dr Rao VBJ Chelikani, the Supreme Court observed: "We are of the opinion that Judges of the Supreme Court and the High Court, MPs, MLAs, officers of the AIS, journalists etc. cannot be treated as a separate category for allotment of land at a discounted basic value in preference to others. The object of the policy perpetuates inequality. The policy differentiates and bestows largesse to an advantaged section/group by resorting to discrimination and denial. It bars the more deserving, as well as those similarly situated, from access to the land at the same price. It promotes social-economic exclusion, to favour a small and privileged section/group. The policy does not meet the equality and fairness standards prescribed by the Constitution."

The Court observed state government's decision "suffers from the malaise of unreasonableness and arbitrariness....whereby the policymakers are bestowing valuable resources to their peers and ilk, triggering a cycle of illegal distribution of State resources. The State holds all its resources in trust for its citizens, to be utilised in larger public and social interest. The State, including the three organs – Legislature, Executive and the Judiciary, are de facto trustees and agents/repositories which function and govern for the benefit of the citizens who are the beneficiaries"

Acknowledging that "the State has the discretion and duty under the Constitution, to distribute its resources to marginalised sections of society, or other imminent and deserving personalities, to the extent necessary to discharge their public functions", the Court observed that "Personalities who contribute to the nation's progress through excellence in sports or other public activities may also be compensated through reasonable and non-arbitrary distribution of State largesse. We would also like to clarify that a policy or law allotting land to public servants may be justifiable provided such allotment is within the confines of Article 14. Unless the classification satisfies the twin prong test and the substantive equality benchmark, the mandate of Article 14 is not met. The State cannot exercise discretion to benefit a select few elites disproportionately, especially ones who are already enjoying pre-existing benefits and advantages." The judgement has been authored by Justice Sanjiv Khanna, 51st Chief Justice of India. 

He observed:"Land is a finite and highly valuable resource, particularly in densely populated urban areas, where access to land for housing and economic activities is increasingly scarce. When the government allocates land at discounted rates to the privileged few, it engenders a system of inequality, conferring upon them a material advantage that remains inaccessible to the common citizen. This preferential treatment conveys the message that certain individuals are entitled to more, not due to the necessities of their public office or the public good, but simply because of their status. Such practices foster resentment and disillusionment among ordinary citizens, who perceive these actions as corrupt or unjust, thereby eroding trust in democratic institutions. This policy undermines solidarity and fraternity, reinforcing societal hierarchies rather than actively working to dismantle them" observed the Court. 

The bench of Justices Khanna and Dipankar Datta quashed the Andhra Pradesh Government Memoranda of 2005 which classified MPs, MLAs, officers of the AIl India Service/State Government, Judges of the Constitutional Courts, and journalists as a separate class for allotment of land at the basic rate. Supreme Court quashed the subsequent Memoranda issued in 2008 allotting the lands within the limits of the Greater Hyderabad Municipal Corporation to these classes as bad in law because it violates Article 14 of the Constitution of India. 

The Court dismissed the appeals filed by the Telangana Government and the Cooperative Societies and their members against a 2010 judgment of the Telangana High Court. Justice Khanna observed:"We are also of the opinion that, accredited journalists cannot be treated as a separate class for such preferential treatment. In fact, a careful study of the policy indicates that higher echelons of all the three wings of the government, —legislators, bureaucrats, and Judges of the Supreme Court and High Courts—have been afforded such preferential treatment. Journalists, who are considered the fourth pillar of democracy, have also been included. These four pillars of democracy are expected to act as checks and balances on the arbitrary exercise of the State's power. However, the distribution of such extraordinary State benefits renders nugatory the very optics of healthy checks and balances within our democratic system."

Why is Law Day, celebrated as Constitution Day since 2015

Prior to 1979, there was no celebration of “Law Day”. It first occurred to the Supreme Court Bar Association in 1979, under the leadership of Dr. L.M. Singhvi, to select November 26 to celebrate the day as “Law Day”. November 26, 1949 was the day on which the people of India gave to themselves the fundamental document of law to govern their national life i.e. the Constitution of India.

Dr. Singhvi articulated the seven main purposes of celebrating “Law Day”:

1. To review the state of law and administration of justice;

2. To suggest ways and means to improve our legal and judicial system;

3. To strengthen the Bar and the Bench relationship;

4. To strengthen the independence of the judiciary;

5. To strengthen the freedom of the legal profession;

6. To make the legal and judicial system an effective instrument to serve the people;

7. To maintain and augment public confidence in our legal and judicial system. 

In the inaugural function of the Law Day, Dr. Singhvi had said: "We have gathered today at this inaugural ceremony to lay the foundation of the annual observance of the Law Day on November 26. I consider it a privilege to welcome you all on this historic and memorable occasion. We owe this occasion to the Executive Committee and the general body of the Supreme Court Bar Association and to the Chief Justice and his brother Judges who endorsed the idea so readily arid positively. I am also grateful to the Bar Associations of different High Courts for their concurrence in implementing the idea of Law Day. I am confident that in the years to come Law Day will be observed and celebrated not only in the Supreme Court and the High Courts, but also in every district and mofussil wherever there is a group of lawyers and judges. Indeed, it is my sanguine hope and ardent wish that Law Day may be observed not only by lawyers, judges and law faculties throughout the country but that it may equally be observed by legislators, governments and civil servants, by the press and the media, by traders and trade unionists, by all professions and vocations, by schools, colleges and universities and by citizen organisations and service associations. I need hardly stress that Law is not the privileged preserve of a few, and that it is the common heritage of us all. Its edifice rests in the ultimate analysis on the foundations of the allegiance and adherence of the community as a whole. That is why it would behave all sections of our society and the country as a whole to observe the Law Day.  Due to certain procedural and administrative difficulties, the Government of India did not find it possible to declare or ensure the observance of Law Day on the 26th November this year. I have, however, the assurance of the Minister of Law and Justice that hopefully the proposal would be considered later by the Government of India when the present constraints do not come in the way. I hope whole-heartedly that the Government of India and the State Governments will in due course of time and within the ensuing year adopt and endorse the idea of Law Day on November 26. The ultimate aim of all governments, whatever their complexion or lack of it, is to secure public order, safeguard public interest and advance the commonweal. Law is the chosen vehicle of those aims. It is well to remember in the midst of lawlessness, confusion and disarray of the present day that without Law there can be no public order and without public order there can be no Law and that there can be no progress, prosperity and happiness without Law and public order."

He further observed: "In a sense, in a Republic committed to Rule of Law, every day is and should be a Law Day. For us, lawyers and judges every day is inevitably a Law Day. Why then do we want to designate a particular day as Law Day? The answer is simple. We wish to emphasize highlight, and underline the cause of Law and its fundamental role in our society. We wish to rededicate ourselves to its noble ideals and sublime purposes. We wish on this day to consecrate Law to Justice and to reflect and ponder inter alia on the problems and concerns of legislation, law reform, legal education and administration of justice. Day after day we are concerned with facets and fragments of Law in their case to case application; on the Law Day we would concern ourselves more purposefully with the quitessence of law, with the mission of law and with its goals and modalities and its efficacy and adequacy in the social context. It is customary to designate a day to add emphasis to a particular theme. Our purpose in designating November 26 as Law Day is to emphasize the role and importance of Law in the life of our Republic, to review the state of law and administration of justice, to suggest ways and means of improving our laws and our legal and judicial system, to establish better and more meaningful equations between the Bench and the Bar, to strengthen the principle of the independence of the judiciary and the freedom of the legal profession, to make our legal system an effective instrument of public service and to maintain, reinforce and augment public confidence in our legal and judicial system. The Law Day will enable as to set our sights on our goals and ideals; it will help to inform and create public opinion on issues of importance relating to Law and Judicial Administration and to dispel misunderstandings; it will prod us to focus our pointed attention on what ought to be priority items on the Law Agenda of our nation; it will provide an occasion to appraise our own profession and its problems. We should utilise the Law Day to give to the legal profession and the judiciary a better public image and a strong sense of identity, solidarity and purpose."

He added: "We have chosen November 26 to be the Law Day because it was on this day, thirty years ago, that we the People of India adopted, enacted and gave to ourselves the Constitution having resolved to constitute India into a sovereign, democratic Repulic. It was a day of national consensus when we resolved to speak in harmony, to march in unison and to exert together Vernacular matter omitted ...Ed. to secure justice, liberty and equality and to assure the dignity of the individual and the unity of the Nation. It was truly a red letter day in our modern history. We shall observe and celebrate the Law Day on November 26 annually with the determination that the spirit and inspiration of that red letter day in our modern history may never become a dead letter, that our Law may always be the shield as well as the sword of iustice liberty. equality and freedom and that lawyers and iudges may strive and and endeavour with steadfast devotion in fulfilling the mission and office of Law."

He noted: "The judiciary and the legal profession have an ancient lineage in India's history. In its modern, westernized orientation and regulated form, however, our legal profession dates back to Regulation VII of 1793 whose author, Lord Cornwallis, thought that a man of character and education functioning as a "vakeel" would be a great asset to the scheme of administration of justice and to its consistency and impartiality. Cornwallis hoped that by the new institution of professional lawyers, a feeling would be generated in the minds of the people that "they have an impartial and all powerful protector in the laws, and that through "he means of public pleaders, they can all times command the exercise of the udiciat powers of the Government lodged in the courts, for the redress of any injuries which they may sustain either in their person or property." The hope and the prophecy of Lord Cornwallis could be fulfilled but partially under colonial rule but it is well to remember that legal profession in India came of age quickly and Indian lawyers and judges have played an important part in guiding our struggle for freedom and in giving to-ourselves a Constitution which has been a crucially unifying and stabilising factor in our national life after the advent of Independence. Without meaning to convey a sense of complacency, I would claim that our courts and the legal profession have played an important and creditable part in working out the terms and equations of justice between citizen and citizen and between the citizen and the State. A whole new jurisprudence of constitutional rights and of judicial review of legislation and of administrative action has been fashioned by Indian lawyers and judges in a short span of three decades and that is something to be proud of. We as a nation are prone to berate and belittle our own achievements and to give in to moods of melancholy and despair, but quite frankly I know of no other nation in the world which has battled with greater valour and gallantry on the legal front or which has achieved more in legal culture under such heavy and insurmountable odds. My fear and apprehension however is that those heavy odds are beginning to get the better of us. At this critical juncture, we cannot afford to yield to apathy,inertia or complacency lest Law and the legal system should become hapless victims of unfounded assumptions and irrational prejudices."

He said: "Let me illustrate. Increasing institution of cases, mounting arrears, accumulating congestion in courts and inevitable Law's delays have given rise not to a body of scientific and rational blueprints in terms of institutional organization and procedural methods or in terms of assessments of judicial manpower requirements, but to a spate of alarm signals and dire shibboleths. If there are more and more cases in courts, that is because we have a population explosion, we have a more complex and friction-prone society, our dispute resolution and conciliation systems are bereft of efficacy, we have increasingly greater awareness of rights, and perhaps because we have more injustice and more arbitrariness in our midst. The Governments are under an obligation to provide an adequate machinery for justice, to  appoint more judges and to give them better emoluments and facilities, to build more court houses, to enact better laws, to devise better dispute resolution procedures, and to administer more effectively and equitably, rather than to blame lawyers and judges for the increase and proliferation of litigation. Courts in India cannot apply a mechanical-statistical razor-blade or wave a magic wand to wipe out the enormous pendency of arrears. Nor can the courts afford to turn a blind eye or a deaf ear to the rank injustices and incongruities of administration merely because they have already too much on their hands. lithe courts begin to do that systematically, they might endanger the confidence and credibility they have come to enjoy. I might venture the view that we will have a lot more litigation in future when some of the long suffering sections of our people are made more aware of their rights by movements of legal literacy and are enabled and equipped by legal aid and advice to ask for their day in Court. Shall we then tell them that we are too preoccupied to take their briefs or to listen to them and their generation? I do not for a moment underestimate the crushing burden of arrears. The problem of arrears and Law's Delays must be solved and it should be solved urgently, sensibly and soon. It cannot be brushed under the carpet. It cannot be solved by short cuts. Lawyers and judges cannot solve the problem because they have no control Over the purse-strings nor have they any control on the system. By the same token, they cannot be blamed for the situation. Has any Government studied the problem in a comprehensive perspective? Has any Government prepared a Five-Year or Ten-Year Plan to solve the problem of arrears? Has any Government so far shown any determination to provide the necessary inputs? Clearly, tinkering, sloganeering and lip-service will not do when stark realities have to be faced."

He underlined: "Judicial emoluments at all levels are inadequate and unattractive. What is worse, judges in the mofussils have to live and work under conditions which are not conducive to their dignity or independence. The Bar must educate public opinion on the issues and pressurize Governments and Legislatures in these matters."

He observed: "We have paid little attention to the quality and training of young entrants to the judiciary at the level of the munsif and the magistrate. Power without experience can have serious social consequences. What is more, younger judges are set into grooves of their own making and appellate reversals may not 'quite provide the cure. We need a number of national training and research institutions for the judiciary of the country where not only initial entrants to the judiciary may receive a basic training in the procedures, etiquette and ethos of the system but where sub-judges and district judges may also periodically refresh, systematise and update their knowledge and where functional time and motion studies in court management may be conducted to improve our procedural framework with a view to avoid wastage of time and to obviate public inconvenience."

He averred: "The Indian Bar is tho second largest in the world with 182 000 advocates on the rolls as of 1st January, 1979. A good deal of the country's legal resources and training remains idle and underutilised and yet there is an enormous unregulated addition to our ranks every year. The legal profession exercises merely perfunctory quality control over legal education which requires greater professional direction and better educational inputs. We as a profession have done little to tend to the young and new entrants to our profession, to impart appropriate skills and experience to them, to provide them with some support, and to relieve the rigours of their initial struggles. For the aging and the disabled members of the profession, we have neither insurance nor social security. Bar libraries in many parts of our country are far from satisfactory; in some parts they do not exist. At certain levels, the whole legal-judicial system is in a ramshackle condition. It is at these levels that the common citizen frequently encounters the Law and its machinery and develops a feeling of revulsion for it because he finds himself shortchanged, harassed and disillusioned. The poor, the illiterate, the disadvantaged and the underprivileged are frequently denied access to the courts and to the Law. No wonder, they feel frustrated and alienated. A comprehensive legal aid plan was conceived more than six years ago. It was in an advanced state of pregnancy in the years 1977 and 1978. No one now knows when it is going to be delivered. We can only look expectantly at our learned friend, the Minister of Law and Justice, to tell us about the health and the growth of the embryo and about the length of the period of gestation. Besides Legal Aid, Law reform mechanisms in our country require a fresh look and considerable overhauling. Modern research methods, post-audit of legalisation and empirical feedback procedures have yet to be introduced in our law reform agencies. Law Commission must be set up in every State. The Indian Law Commission and its innumerable reports should be salvaged from the dusty dungeon of official neglect. Our own professional tools need to be improved. We need to have refreshed Seminars from time to time. We need to discuss new developments in law. We need adequate court houses, bar rooms, bar libraries and lawyers' chambers throughout the country on a priority basis. It is time that lawyers and judges and legislators and law teachers should turn their attention to these grass-root problems." 

He concluded: "I shall not attempt at this Inaugural Ceremony of Law Day to place before you a long and "exhausting" catalogue of items and issues which may be eligible for the nation's Law Agenda. Suffice it to say that the accumulated arrears of such pending issues and problems of importance is very large and many of them deserve your special leave rather than a quick dismissal in limine. To meet the challenges of these manifold problems, we must formulate our ideals and goals and rededicate ourselves to them. Before the next Law Day I hope that we would have prepared a formal Law Day Charter enshrining those ideals and goals in consultation with the members of the Bar and members of the Judiciary in all parts of the country. I am glad to say that a Committee is being formed at the initiative of the Supreme Court Bar Association to frame a Law Day Charter and that at the instance of the Chief Justice of India, Mr. Justice Bhagwati and Mr. Justice lyer, whose invaluable guidance permeates today's programme, have agreed to associate themselves with what promises to be an evocative and landmark document. The Law Day Charter will no doubt be a course of inspiration, but to resolve those issues and problems on the nation's Law Agenda, we will need both inspiration and perspiration. We will need to harness the resources of the Bench and the Bar to the utmost, to enlist the responsive and understanding support of Legislatures and Governments, to build up a strong pro bono publico image for the Bar, and to provide bridges of communication between the legal-judicial system and the citizen. The Law Day beacons us to these and other epoch making but intensely practical tasks. Its clarion call is urgent and compelling. We must answer that call for what is at stake is the future of law and justice and freedom and good life, for us and all our fellow citizens and for our succeeding generations. Let me conclude by saying prayerfully: Long Live Law Day. With my apology for a somewhat long introductory speech, I would now request the Chief Justice of India, for whom we have the greatest affection and esteem, to inaugurate the Law Day function and to proclaim the Law Day."

The Chief Justice of India had inaugurated and proclaimed the Law Day on November 26, 1979 at the function held by the Supreme Court Bar Association (SCBA). Law Day is observed throughout the country.    

Since 1979, the legal fraternity had been celebrating November 26 as ‘Law Day’ every year on a call by the SCBA. In 2015, commemorating Babasaheb Ambedkar’s 125th birth anniversary and on 71st anniversary of the adoption of the Constitution of India. the Union Government decided to celebrate November 26 as the Constitution Day.  

In his concluding speech, Dr. Ambedkar, as chairman of the drafting committee:“What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy.” 

In Bhagvat Gita, Krishna says:“श्रेयान्स्वधर्मो विगुण: परधर्मात्स्वनुष्ठितात् | स्वधर्मे निधनं श्रेय: परधर्मो भयावह:” Chapter 3, Verse 35.

(Better do your own duty even if you slightly err in doing so, than to do another person’s job, even if occasionally that is well done. By sincerely doing your own duty, whatever may be the ultimate result of it, you will not be endangering yourself.)

Mothers and fathers of the Constitution of India framed it to ensure that the organs of the State do their constitutional duty, instead of endangering the nation by following dictates of those who undermine constitutional dharma.    

Maharshu Vyasa says:“अष्टादशपुराणेषु व्यासस्य वचनद्वयम् । परोपकारः पुण्याय पापाय परपीडनम् ॥” (The essence of eighteen puranas (scriptures) in two sentences(It is helping others which is punya; It is harming others which is sin.)

Our constitutional dharma prevents harm and safeguards natural rights.  

In the Bhagvat Gita, Krishna says:“यद्यदाचरति श्रेष्ठस्तत्तदेवेतरो जनः । स यत्प्रमाणं कुरुते लोकस्तदनुवर्तते ” (Whatever the elders do, others try to do the same; whatever standard the elders set up, others try to set up the same standard.) Chapter 3, Verse 21

Most of the members of the Constituent Assembly articulated and emulated these pearls of ancient wisdom On January 24, 1950, the Constituent Assembly met for the last time. During its last sitting, Dr Rajendra Prasad’s name was announced as the first President of India. Responding to cheers and congratulations from the fellow members, the stalwart freedom fighter said:“I have always held that the time for congratulation is not when a man is appointed to an office, but when he retires, and I would like, to wait until the moment comes when I have to lay down the office which you have conferred on me to see whether I have deserved the confidence and the goodwill which have been showered on me from all sides and by all friends alike.” Rajen Babu echoed Sant Kabir who sang: "दास कबीर जतन करि ओढी, ज्यों कीं त्यों धर दीनी चदरिया॥" regarding removing the cloth of the human body in the same condition, without spoiling it. 

Notably, responding to a petition by the Centre for Independence of Judges and Lawyers, Geneva, a UN Sub-Commission appointed Dr Singhvi as Special Rapporteur to study the matters relating to the Independence and impartiality of the Judiciary, Jurors, Assessors and of the independence of lawyers and to formulate his recommendations, by its decision 1980/24. In the same year, the 6th U.N. Congress on the Prevention of Crime and Treatment of offenders, in its resolution No. 16, called for priority to be given to "the elaboration of the guidelines relating to the independence, selection, payment training and relation of Judges and prosecutors". In his preliminary report, submitted in 1980, Dr. Singhvi, referred to the entire history of the movement for the independence of the judiciary and said it was necessary to formulate a viable equation between 'independence' and 'accountability. He said that "the plateau of perils to the impartiality and independence of Judges, Jurists and Assessors and the independence of the legal profession should be, mopped up carefully and elaborately to enable negotiation of the the terrain and to overcome the hazards by way of constitutional, legal; institutional, cultural, procedural and other appropriate safeguards." Dr. Singhvi submitted his progress reports in 1980, 81 and 82. On the occasion of the Constitution Day, it is relevant to recollect that the work of Dr. Singhvi which makes a compelling case for the financial autonomy of the Indian judiciary.

Constitution Day reminds the State and the citizens of their constitutional dharma and morality which is the source of all law.

Dr. Gopal Krishna

Appeal from World's First Republic-Vaishali- Save, Save, Save-Humanity, Nation, Constitution

Appeal from World's First Republic-Vaishali
Save, Save, Save
Humanity, Nation, Constitution

Dear descendents of Vaishali republic and fellow citizens,

On the occasion of the Constitution Day,  we are reminded of the exclusion of Vaishali republic from discussions of the world’s oldest republics, like those of the Greeks as a result of the dominance of the Euro-centric world view. The fact is that the existence of the Vaishali republic illustrates that democratic process has begun prior to the origin of Western democratic process. The shift from the legal framework of "King is the law" to "Law is the king" framework in Vaishali republic and selection of king irrespective of king’s bloodline was an advancement which several Western democracies are yet to adopt even now.
The Magna Carta, a document of 1215 recognised certain fundamental rights but did not provide for election of the king. This document, The Spirit of Laws, a book by  published in 1748 and the Constitution of the USA adopted in the late 18th century paved the way for adoption of the principles of constitutionalism and modern day constitutions. Were they the only democratic practices that lay the foundation of democracy as we know today?
The fact is that the Indian subcontinent had several independent republics, some as old as 6th century BC wherein an elected king. It had a deliberative and representative assembly. These assemblies met regularly and passed laws pertaining to finances, administration and justice.  Vaishali was home to one such republic. It is now known as the world’s first republic without hereditary monarchy. Vaishali was part of the Vajji confederacy and the 16 mahajanapadas (kingdoms) of ancient India. 
The Licchavis, who held sway over the Kathmandu Valley in present-day Nepal and a major part of northern Bihar, were governed by an assembly of over 7,000 elected kings.
These rajas met each year to elect a member from their groups as a ruler. The huge mound that is today called Raja Vishal ka Garh served as a parliament for the Vaishali republic. It had a seating capacity of 7000 legislators. Vaishali republic had the Abhishek Pushkarini, the coronation tank where the elected representatives were anointed, who in turn selected the king. It is apparent that the Vaishali republic was the earliest example of a democracy.
We know that the original copies of the Constitution of India are kept in the Library of the Parliament of India. Each part of the Constitution begins with a depiction of a phase or scene from India’s history. At the beginning of each part of the Constitution, Nandalal Bose, renowned artist has depicted a phase or scene from India's national experience and history. The 22 artwork and illustrations represent vignettes from the different periods of history of the Indian subcontinent, ranging from Mohenjodaro in the Indus Valley, the Vedic period, the Gupta and Maurya empires and the Mughal era to
the national freedom movement. By doing so, it captures 4000 years of rich history, tradition and culture of the Indian subcontinent which includes the legacy of Vaishali republic. People of India are the ultimate custodians of the Constitution. It is
in the citizens that sovereignty vests and it is in their name that the Constitution was adopted. The Constitution empowers the citizen, but the citizen too empowers the Constitution – by following it, by adhering to it, by protecting it, and by persevering to make it more meaningful with words and deeds. The Constitution is everybody’s preserve. This day is a reminder of the continuity of democratic process which commenced in Vaishali. It reminds citizens that democracy is a government by discussion and deliberation wherein principles of comprehensive justice are enunciated.
Respect for disagreement is necessary for the   democracy to be meaningful. It is necessary to control the dictatorial capitalist tendencies and the tyranny of majoritarianism. The capture of constitutional institutions by these tendencies paves the way for authoritarianism. Giving priority to the wiping of the tears of the last person standing in the queue instead of the protection of the interests of the country's 190 billionaires is an essential condition for democracy to be meaningful.
- सर्वे भवन्तु सुखिनः सर्वे सन्तु निरामया। सर्वे भद्राणि पश्यन्तु मा कश्चित् दुःखभाग् भवेत्। (May all be happy, may all be disease-free, may all be witnesses of the auspicious and may no one be a part of sorrow.)

To mark the enormous significance of the day, we appeal to all the Mukhiyas, Sarpanchs lawmakers, lawyers, teachers and political and social activists to join the event and plan measures to regain the spirit of healthy debate and human values which are worthy of emulation.

Date: 26 November, 2024
Venue: Vaishali Garh Time: 9 AM

Yogesh Chandra Verma 

Ramjiban Singh

Dr. Gopal Krishna

Alok Kumar 

Sanjeev Kumar 

Jaiprakash Kumar 

Bittu Bhardwaj 

Prakash Kumar  

                                              विश्व के प्रथम गणराज्य-वैशाली  करें आवाहन

                                                        बचाओ, बचाओ, बचाओ

                                                        मानवता, देश, संविधान 

वैशाली गणतंत्र के प्रिय वंशजों और साथी नागरिकों,

संविधान दिवस के अवसर पर, हमें यूरो-केंद्रित विश्व दृष्टिकोण के प्रभुत्व के परिणामस्वरूप, यूनानियों की तरह, दुनिया के सबसे पुराने गणराज्यों की चर्चा से वैशाली गणराज्य के बहिष्कार की याद आती है। तथ्य यह है कि वैशाली गणतंत्र का अस्तित्व यह दर्शाता है कि अपने देश में लोकतांत्रिक प्रक्रिया पश्चिमी लोकतांत्रिक प्रक्रिया के उद्भव से पहले ही शुरू हो चुकी थी।

वैशाली गणराज्य में "राजा ही कानून है" के कानूनी ढांचे से "कानून ही राजा है" के ढांचे में परिवर्तित होना और राजवंश के बावजूद राजा का चयन की पहल एक प्रगति थी जिसे कई पश्चिमी लोकतंत्रों ने अब भी नहीं अपनाया है।

मैग्ना कार्टा, 1215 का एक दस्तावेज़, कुछ मौलिक अधिकारों को मान्यता देता है लेकिन राजा के चुनाव का प्रावधान नहीं करता है। यह दस्तावेज़, द स्पिरिट ऑफ़ लॉज़-1748 में प्रकाशित एक पुस्तक और 18वीं शताब्दी के अंत में अपनाए गए संयुक्त राज्य अमेरिका के संविधान ने संविधानवाद और आधुनिक संविधान के सिद्धांतों को अपनाने का मार्ग प्रशस्त किया। मगर क्या वे एकमात्र लोकतांत्रिक प्रथाएं थीं जिन्होंने लोकतंत्र की नींव रखी जैसा कि हम आज जानते हैं?

तथ्य यह है कि भारतीय उपमहाद्वीप में कई स्वतंत्र गणराज्य थे, जिनमें से कुछ ईसा पूर्व छठी शताब्दी तक पुराने थे, जिनमें एक निर्वाचित राजा होता था। इसमें एक विचारशील एवं प्रतिनिधि सभा थी। ये सभाएँ नियमित रूप से बैठक करती थीं और वित्त, प्रशासन और न्याय से संबंधित कानून पारित करती थीं।  वैशाली ऐसे ही एक गणतंत्र का घर था। अब इसे वंशानुगत राजशाही के बिना दुनिया के पहले गणतंत्र के रूप में जाना जाता है। वैशाली वज्जि संघ और प्राचीन भारत के 16 महाजनपदों (राज्यों) का हिस्सा था।  लिच्छवी, जिनका वर्तमान नेपाल में काठमांडू घाटी और उत्तरी बिहार के एक बड़े हिस्से पर प्रभुत्व था, 7,007 से अधिक निर्वाचित राजाओं की एक सभा द्वारा शासित थे।

ये राजा प्रत्येक वर्ष अपने समूह से एक सदस्य को शासक के रूप में चुनने के लिए मिलते थे। वह विशाल टीला जिसे राजा विशाल का गढ़ कहा जाता है, वैशाली गणराज्य के लिए संसद के रूप में कार्य करता था  जिसमे 7007 सभासद बैठ सकते थे। वैशाली गणराज्य में अभिषेक पुष्करिणी, राज्याभिषेक जलश्रोत था जहां निर्वाचित प्रतिनिधियों का अभिषेक किया जाता था, जो  राजा का चयन करते थे। यह स्पष्ट है कि वैशाली गणतंत्र लोकतंत्र के जन्म का सबसे पहला उदाहरण था।

आधुनिक समय में भारत गणराज्य का संविधान 26 नवम्बर 1949 को बनकर तैयार हुआ। संविधान सभा के प्रारूप समिति के अध्यक्ष डॉ॰ भीमराव आंबेडकर के 125वें जयंती वर्ष के रूप में 26 नवम्बर 2015 को पहली बार भारत सरकार द्वारा संविधान दिवस सम्पूर्ण भारत में मनाया गया तथा 26 नवम्बर 2015 से हरेक साल सम्पूर्ण भारत में संविधान दिवस मनाया जा रहा है। इससे पहले इसे राष्ट्रीय कानून दिवस के रूप में मनाया जाता था संविधान सभा ने भारत के संविधान को 2 वर्ष 11 माह 18 दिन में 26 नवम्बर 1949 को पूरा कर देश को समर्पित किया। गणतंत्र भारत में 26 जनवरी 1950 से संविधान अमल में लाया गया।

भारत के संविधान की मूल प्रतियाँ भारतीय संसद के पुस्तकालय में रखी हुई हैं। संविधान का प्रत्येक भाग भारत के इतिहास के एक चरण या दृश्य के चित्रण से शुरू होता है। संविधान के प्रत्येक भाग की शुरुआत में, प्रसिद्ध कलाकार नंदलाल बोस ने भारत के राष्ट्रीय अनुभव और इतिहास के एक चरण या दृश्य का चित्रण किया है। 22 कलाकृतियाँ और चित्र भारतीय उपमहाद्वीप के इतिहास के विभिन्न कालखंडों से लेकर सिंधु घाटी में मोहनजोदड़ो, वैदिक काल, गुप्त और मौर्य साम्राज्य, मुगल काल से लेकर राष्ट्रीय स्वतंत्रता आंदोलन तक के दृश्य दर्शाते हैं। ये दृश्य भारतीय उपमहाद्वीप के 4000 वर्षों के समृद्ध इतिहास, परंपरा और संस्कृति को दर्शाता है जिसमें वैशाली गणराज्य की विरासत भी शामिल है। भारत के लोग संविधान के परम संरक्षक हैं। संप्रभुता नागरिकों में निहित है और उन्हीं के नाम पर संविधान अपनाया गया। संविधान नागरिक को सशक्त बनाता है, लेकिन नागरिक भी संविधान को सशक्त बनाता है। संविधान दिवस का दिन वैशाली में शुरू हुई लोकतांत्रिक प्रक्रिया की निरंतरता की याद दिलाता है। यह नागरिकों को याद दिलाता है कि लोकतंत्र चर्चा और विचार-विमर्श वाली सरकार है जिसमें व्यापक न्याय के सिद्धांत प्रतिपादित किए जाते हैं।

लोकतंत्र की सार्थकता के लिए असहमति का सम्मान ज़रूरी हैं। तानाशाही पूंजीवादी प्रवृत्तियों व बहुसंख्यकवाद की निरंकुशता पर लगाम ज़रूरी हैं। इन प्रवृत्तियों द्वारा संवैधानिक संस्थाओं पर कब्जा अधिनायकवाद का मार्ग प्रशस्त होता हैं l देश के 190 अरबपतियों के हितों की सुरक्षा को प्राथमिकता देकर कतार में खड़े आखिरी व्यक्ति के आँसू को नहीं पोछा जा सकता हैं। लोकतंत्र के अर्थपूर्ण होने की एक अनिवार्य शर्त हैं- सर्वे भवन्तु सुखिनः सर्वे सन्तु निरामया। सर्वे भद्राणि पश्यन्तु मा कश्चित् दुःखभाग् भवेत्। (सभी सुखी होवें, सभी रोगमुक्त रहें, सभी मंगलमय के साक्षी बनें और कोई भी दुःख का भागी न बने।)

संविधान दिवस के दिन के अत्यधिक महत्व को चिह्नित करने के लिए, हम सभी मुखियाओं, सरपंचों, विधायकों, वकीलों, शिक्षकों और राजनीतिक और सामाजिक कार्यकर्ताओं से इस कार्यक्रम में शामिल होने और स्वस्थ बहस की भावना और अनुकरण के योग्य मानवीय मूल्यों को पुनः प्राप्त करने के लिए उपायों की योजना बनाने की अपील करते हैं।

तारीख: 26 नवम्बर 2024
समय: 9 बजे
स्थान: वैशाली गढ़

निवेदक
योगेश चंद्र वर्मा, प्रेसिडेंट, इंडियन एसोसिएशन ऑफ लाएर्स, बिहार
राम जीबन प्रसाद सिंह, जेनेरल सेक्रेटरी, इंडियन एसोसिएशन ऑफ लाएर्स, बिहार
डॉ. गोपाल कृष्ण, सेक्रेटरी, जुरिस्ट एसोसिएशन
आलोक कुमार, अधिवक्ता
संजीव कुमार, अधिवक्ता
जयप्रकाश कुमार, अधिवक्ता
बिट्टू भारद्वाज, प्रकाश कुमार

Supreme Court's judgment on unconstitutional "bulldozer justice" sent to Chief Secretaries of States/Union Territories, High Courts' Registrar Generals, DMs, local authorities

 “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement.’ So be it – unless he has justification by law.”

-Lord Denning in Southam v Smout [1964] 1 QB 308 at 320

In Re: Directions in the matter of demolition of structures, Supreme Court's Division Bench of Justice B. R. Gavai and K.V. Viswamathan recalled the decision of Lord Denning and observed: "If a citizen’s house is demolished merely because he is an accused or even for that matter a convict, that too without following the due process as prescribed by law, in our considered view, it will be totally unconstitutional for more than one reason. Firstly, the executive cannot declare a person guilty, as this process is the fundamental aspect of the judicial review. Only on the basis of the accusations, if the executive demolishes the property/properties of such an accused person without following the due process of law, it would strike at the basic principle of rule of law and is not permissible. The executive cannot become a judge and decide that a person accused is guilty and, therefore, punish him by demolishing his residential/commercial property/properties. Such an act of the executive would be transgressing its limits." 

The 95-page long judgement further observed: "The chilling sight of a bulldozer demolishing a building, when authorities have failed to follow the basic principles of natural justice and have acted without adhering to the principle of due process, reminds one of a lawless state of affairs, where “might was right”. In our constitution, which rests on the foundation of ‘the rule of law’, such high-handed and arbitrary actions have no place. Such excesses at the hands of the executive will have to be dealt with the heavy hand of the law. Our constitutional ethos and values would not permit any such abuse of power and such misadventures cannot be tolerated by the court of law. As we have already said, such an action also cannot be done in respect of a person who is convicted of an offence. Even in the case of such a person the property/properties cannot be demolished without following the due process as prescribed by law. Such an action by the executive would be wholly arbitrary and would amount to an abuse of process of law. The executive in such a case would be guilty of taking the law in his hand and giving a go-bye to the principle of the rule of law."

The Court noted that "even in the cases consisting of imposition of a death sentence, it is always a discretion available to the courts as to whether to award such an extreme punishment or not. There is even an institutional safeguard in the cases of such punishment to the effect that the decision of the trial court inflicting death penalty cannot be executed unless it is confirmed by the High Court. Even in the cases of convicts for the commission of most extreme and heinous offences, the punishment cannot be imposed without following the mandatory requirements under the statute. In that light, can it be said that a person who is only accused of committing some crime or even convicted can be inflicted the punishment of demolition of his property/properties? The answer is an emphatic ‘No’."

The judgement reads: "There is another angle to this problem. It is not only the accused who lives in such property or owns such property. If his spouse, children, parents live in the same house or co-own the same property, can they be penalized by demolishing the property without them even being involved in any crime only on the basis of them being related to an alleged accused person? What is their mistake if their relative is arrayed as an accused in some complaint or F.I.R.? As is well known, a pious father may have a recalcitrant son and vice versa. Punishing such persons who have no connection with the crime by demolishing the house where they live in or properties owned by them is nothing but an anarchy and would amount to a violation of the right to life guaranteed under the Constitution."

It also reads: "The right to shelter is one of the facets of Article 21. Depriving such innocent people of their right to life by removing shelter from their heads, in our considered view, would be wholly unconstitutional." 

The judgement observes that the right to shelter is one of the facets of Article 21 of the Constitution. "If the persons are to be dishoused, then for taking such steps the concerned authorities must satisfy themselves that such an extreme step of demolition is only available and other options including compounding and demolition of only part of the house property are not available."

Justice Gavai noted that "the construction of a house has an aspect of socio-economic rights. For an average citizen, the construction of a house is often the culmination of years of hard work, dreams, and aspirations. A house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future. Having a house or a roof over one’s head gives satisfaction to any person. It gives a sense of dignity and a sense of belonging. If this is to be taken away, then the authority must be satisfied that this is the only option available....It is a settled principle of criminal jurisprudence as recognized in our country that a person is presumed to be innocent till he is held guilty. In our view, if demolition of a house is permitted wherein number of persons of a family or a few families reside only on the ground that one person residing in such a house is either an accused or convicted in the crime, it will amount to inflicting a collective punishment on the entire family or the families residing in such structure. In our considered view, our constitutional scheme and the criminal jurisprudence would never permit the same."

In order to allay the fears in the minds of the citizens with regard to arbitrary exercise of power by the officers/officials of the State, we find it necessary to issue certain directions in exercise of our power under Article 142 of the Constitution. We are also of the view that even after orders of demolition are passed, the affected party needs to be given some time so as to challenge the order of demolition before an appropriate forum. We are further of the view that even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to them to vacate and arrange their affairs. It is not a happy sight to see women, children and aged persons dragged to the streets overnight. Heavens would not fall on the authorities if they hold their hands for some period. At the outset, we clarify that these directions will not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law.

The Court's Notice states: 

"i. No demolition should be carried out without a prior show cause notice returnable either in accordance
with the time provided by the local municipal laws or within 15 days’ time from the date of service of such notice, whichever is later.
ii. The notice shall be served upon the owner/occupier by a registered post A.D. also be affixed conspicuously on the outer portion of the structure in question.
iii. The time of 15 days, stated herein above, shall start from the date of receipt of the said notice.
iv. To prevent any allegation of backdating, we direct that as soon as the show cause notice is duly served, intimation thereof shall be sent to the office of Collector/District Magistrate of the district digitally by email and an auto generated reply acknowledging receipt of the mail should also be issued from the office
of the Collector/District Magistrate. The Collector/DM shall designate a nodal officer and also assign an email address and communicate the same to all the municipal and other authorities in charge of building regulations and demolition within one month from today.
v. The notice shall contain the details regarding:
a. the nature of the unauthorized construction.
b. the details of the specific violation and the grounds of demolition.
c. a list of documents that the noticee is required to furnish along with his reply.
d. The notice should also specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place;
vi. Every municipal/local authority shall assign a designated digital portal, within 3 months from today wherein details regarding service/pasting of the notice, the reply, the show cause notice and the order passed thereon would be available.

B. PERSONAL HEARING
i. The designated authority shall give an opportunity of personal hearing to the person concerned.
ii. The minutes of such a hearing shall also be recorded.

C. FINAL ORDER
i. Upon hearing, the designated authority shall pass a final order.
ii. The final order shall contain:
a. the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof;
b. as to whether the unauthorized construction is compoundable, if it is not so, the reasons therefor;
c. if the designated authority finds that only part of the construction is unauthorized/non-compoundable, then the details thereof.
d. as to why the extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available.

D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL SCRUTINY OF THE FINAL ORDER.
i. We further direct that if the statute provides for an appellate opportunity and time for filing the same, or
even if it does not so, the order will not be implemented for a period of 15 days from the date of receipt thereof.
The order shall also be displayed on the digital portal as stated above.
ii. An opportunity should be given to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days. Only after the period of 15 days from the date of receipt of the notice has expired and the owner/occupier has not removed/demolished the unauthorized construction, and if the same is not stayed by any appellate authority or a court, the concerned authority shall take steps to demolish the same. It is only such construction which is found to be unauthorized and not compoundable shall be demolished.
iii. Before demolition, a detailed inspection report shall be prepared by the concerned authority signed by two Panchas.
 

E. PROCEEDINGS OF DEMOLITION
i. The proceedings of demolition shall be video-graphed, and the concerned authority shall prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process. Video recording to be duly preserved.
ii. The said demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal.

In conclusion, the judgement reads: "Needless to state that the authorities hereinafter shall strictly comply with the aforesaid directions issued by us. It will also be informed that violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution. The officials should also be informed that if the demolition is found to be in violation of the orders of this Court, the officer/officers concerned will be held responsible for restitution of the demolished property at his/their personal cost in addition to payment of damages."

The judgement was authored by Justice Gavai.  The Court concluded: "The Registrar (Judicial) is directed to circulate a copy of this judgment to the Chief Secretaries of all the States/Union Territories and the Registrar Generals of all the High Courts. All State Governments shall issue circulars to all the District Magistrates and local authorities intimating them about the directions issued by this Court." It was delivered on November 13, 2024.