Constitution is evolving to ‘swadeshi’, says Presidential Reference Bench

Besides advising President Droupadi Murmu against fixing timelines for Governors, the Presidential Reference Bench opined that the Indian Constitution is truly turning to vibrant ‘swadeshi’.

“The point that is being made is this – the Indian Constitution is not just transformative in its adoption, it has been and continues to be transformative in its practice and interpretation, shedding its colonial vestiges for a vibrant and evolving swadeshi foundation,” the five-judge Bench headed by Chief Justice (retired) B.R. Gavai observed in a 111-page opinion.

The Reference opinion does not cite a single foreign case law to advise President Murmu.

Acknowledging that the Constitution has drawn inspiration from multiple sources abroad, including the functioning of the Westminster parliamentary model of the United Kingdom and the doctrine of separation of powers from the United States, the Supreme Court said the interpretation and working of the Constitution over the decades have given it a truly ‘swadeshi’ colour.

The ‘swadeshi’ contours of the opinion were openly appreciated by the Centre, speaking through Solicitor General Tushar Mehta, during the Ceremonial Bench hearing held on the last working day of Chief Justice Gavai. Mr. Mehta spoke about building a unique ‘Indian’ jurisprudence.

‘Indianisation’ of the legal system has been a point of debate in the Supreme Court during the tenures of several Chief Justices, each one adding his own connotations to the idea.

“We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for that matter any other foreign country. We no longer need the crutches of a foreign legal order… We have to build up our own jurisprudence,” Chief Justice of India (retired) P.N. Bhagwati had observed way back in 1986.

Chief Justice (retired) N.V. Ramana had called for the “Indianisation” to provide greater access to justice to the poor as the “need of the hour”.

“When I say ‘Indianisation’, I mean the need to adapt to the practical realities of our society and localise our justice delivery systems… For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court,” Justice Ramana had explained.

Justice S.A. Bobde (later Chief Justice of India and now retired), wrote in the historic privacy judgment that “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”.

The court’s judgments on decriminalising adultery and Sabarimala temple entry to women of a certain age quoted heavily from the Manusmriti.

But it was Supreme Court judge Justice (retired) S. Abdul Nazeer who had traversed the extra mile in his speech on ‘Decolonisation of the Indian Legal System’ at the National Council meeting of the Akhil Bharatiya Adhivakta Parishad in Hyderabad. He rued India’s neglect of the “legal giants of ancient India” like Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and adherence to the colonial legal system.