Elected Representatives Can't Think Whatever They Do Is Right Just Because Of Popular Mandate: Justice Chelameshwar

Former Supreme Court judge Justice Jasti Chelameshwar on Saturday said that elected representatives often believe that a mandate from the people means whatever they do is right, which, he stressed, is not approved by the Constitution.

“What is happening in this country is that elected representatives believe that we have got the mandate from the people so whatever we do is right. That is exactly the constitutional issue. That is what is not approved by the Constitution”, he said.

He was delivering a lecture at the Government Law College, Ernakulam, on the topic “Clamour for Removal of Secularism & Socialism: Whether Justified”.

Justice Chelameshwar said that as long as the current legal system is in place, we have to accept it. “You don't want this Constitution, throw it out. Throw it in the Arabian Sea that is a different issue. I am not on that. So long as this is the system that we have chosen, the legal system is the umpire between the legislative bodies and the constitutional correctness. You have to accept it.”

He emphasised that that one can criticise the Constitution and call for changes. “If you don't like a particular view you have to continue fighting that, say please correct your view. It is possible. What was right in Golaknath was overturned in 1973.”

The 1967 Golaknath judgment had held that Parliament could all parts of the Constitution including fundamental rights, but could not curtail the fundamental rights. A larger bench in the 1973 Kesavananda Bharati case overruled the 1967 judgment and limited the power of the Parliament, holding that it could not alter the basic structure of the Constitution.

On the question of whether a perfect political system can be found, he said, “Nothing can be perfect. In natural sciences some degree of approximation of the truth is possible. But in human sciences the variables are too many. 600 crore people on the face of the Earth today no two human beings think alike. But you don't give up. You want a better system, what you believe would be a better system, you fight for it.”

Recalling the unprecedented January 2018 press conference in which he and three other senior-most judges of the Supreme Court raised concerns about the allocation of sensitive cases in the apex court , he added, “Somebody asked me why did I hold the press conference. I said I thought things are not right and I owed a duty to my fellow citizens of this country which gave me the honour of becoming a Supreme Court judge. A lot of people criticized me for holding the press conference, I am not on that. That is a way I chose. So long as I don't resort to violence I can advocate my views and you can also do it.”

In his lecture, Justice Chelameshwar noted that for 25 to 26 years after the formation of the Republic, the words “secular” and “socialist” did not exist in the Constitution, though parts of the document dealt with these concepts. He said that technically, what could be brought in by amendment could also be deleted by amendment.

Justice Chelameshwar emphasised that the Constitution is not static and requires adaptation to changing times and needs. Referring to the 42nd Amendment, which inserted these words, he remarked that if the rest of the document was not enough to establish a socialist and secular framework, merely adding two words would not make a difference.

“What great wisdom got into the minds of the members of the Parliament during the 42nd amendment to introduce these two words...If that huge document could not convince them of the socialist and secular structure adding that to words I don't know what wisdom was that. Anyways they did it.”

He emphasised that adding or deleting the words will not change the inherent nature of the Constitution.

He emphasised, “Ultimately Members of the Parliament, Members of the Legislative Assembly, judges, all of us are members of the civil society. It is their own maturity level that preserves or destroys the Constitution. Preserving a word here deleting a word there will not make a difference.”

Discussing socialism, he said that in 1991, with its liberalisation, privatisation and globalisation policy, without deleting the word from the Constitution, the government “deleted everything” in practice due to the prevailing economic crisis, including national indebtedness.

On secularism, he highlighted that India is home to numerous religious practices and denominations, and that religious conflicts have occurred both in India and in other parts of the world. He said that constitutions are created to prevent religious persecution and to enable peaceful coexistence in a diverse society.

He added, “Even if we drop it (secularism) today the other parts remain, the fundamental rights.” He also stated, “We human beings make the nation. It is for us collectively to determine whether we should live in a secular society in a true sense of it. Whether we are willing to look at all human beings as human beings, not by their cultural practices.”

Justice Chelameshwar urged lawyers to tell society: “Look here, would we like to live in a country where you have new freedom of conscience or no freedom of liberty? That is the question ultimately. It is for us to determine.”

The lecture can be watched here.