This year marks the 75th year of our Constitution which was finally approved by the Constituent Assembly and adopted with all fervour and enthusiasm on November 26, 1949. Some of the provisions came into effect that day itself. November 26 is now celebrated as Constitution Day. The vast majority of the provisions of the Constitution came into force on January 26, 1950. January 26 is celebrated as Republic Day.
The aspiration to make power impersonal and its exercise accountable has been the motivation for constitutions and constitutionalism. Constitutionalism is an attempt to establish the supremacy of law –its essence is the submission of politics to law. Men throughout history have longed for a higher standard by which their own man-made laws are tested. Constitutions are that higher standard. The belief that individuals have natural rights— inherent and inalienable—which are anterior to any written instrument like a Constitution, that government acquires its authority from the people, and that the purpose of government is to promote common good is what conceives and conceptualizes a Constitution made in the name of the people, defining the powers of the main institutions and delineating the relationship between various organs of government and between the government and the citizens. It is framed for ages to come and designed to approach immortality as nearly as human institutions can.
'Constitution' refers to the document –the Constitution of India or of the USA while 'Constitutional law' refers to the justiciable parts of the document and those rules which have been evolved by courts in enforcing those justiciable provisions. A constitution is the very life breath of a nation and the vehicle for its progress. It is the country's supreme law. A constitution is about division, distribution, and management of State power so as to prevent arbitrariness and establish accountability to law. It is a framework of political society organized through and by law, in which law has established permanent institutions with recognized functions and definite powers.
A 'constitutional state' is one in which the powers of the government, the rights of the governed and their relations inter se are adjusted. The term 'constitutional government' is applied only to those governments whose fundamental rules not only locate the sovereign power in some person(s) chosen in some prescribed manner, but also define the limits of its exercise so as to protect individual rights and shield them against the exercise of arbitrary power. All states with some constitution or the other purport to govern for the welfare of the people. What distinguishes a democratic state from a totalitarian one is that a free democratic state respects certain basic human rights and endeavours to achieve its objectives through the discipline of fundamental freedoms. That is what constitutional government really signifies.
The objectives of a written constitution in a democracy are broadly threefold: to establish the framework or structure of government; to delegate or assign powers to the various organs of the government; and to restrain the exercise of those powers in order to preserve individual rights. Constitutions provide the means to guard against the States' capacity for invading the liberties available and guaranteed to all civilized people. A modern constitution empowers citizens and also controls and disciplines power. By defining competences and entrenching rights the constitution limits powers and protects liberties. It unfolds a vision and a goal and charts a nuanced path for its realization.
A constitution embodies and expresses the goals and aspirations of the people depending upon the history of that society. It contains certain core political values and beliefs which cannot be tinkered with by transient public opinion. The limitations imposed by constitutional law on the actions of government are essential for the preservation of public and private rights, notwithstanding even the representative character of political institutions. The aim of good government is to bring about the security, welfare, and happiness of the people. Of the different forms of government, democratic government with a bill of rights comes closest to the ideal for the attainment of these objectives.
Generally speaking, every constitution has various aspects. It is first a historical product. Secondly it expresses the philosophy- political, economic, sociological- of its makers. Thirdly, it is a political instrument for (good) governance, seeking to make an adjustment between the political forces operating in the body politic. The fourth aspect is its legal character with which we, as students of law, are primarily concerned. This legal aspect is what empowers courts to exercise the power of judicial review and grant relief. This legal aspect emphasized by the American Supreme Court in Marbury v. Madison has been incorporated in different express provisions of our Constitution.
The Constitution of India is one of the most comprehensive and well drafted in spite of its elephantine size. It is one of the finest creations of human ingenuity. Our Constitution represents a high watermark of consensus in India's political history. It manifests the best in our past traditions, it provides a considered response to the needs and aspirations of the present and possesses sufficient resilience to cope with and weather the requirements of the future. It is an instrument drawn with such meticulous care by a remarkably wise, articulate, and erudite pantheon of persons of outstanding abilities and backgrounds who 'so well understood how to make language fit their thought and vision'. The Assembly was composed of persons of the highest calibre drawn from different sections of society and representing various shades of opinion. The debates and discussions were of a very high order and profound, not marred by any narrow ideas or viewpoints. The deliberations reveal a very high level of political acumen and standard of debate. The presence and participation of such a vast, inclusive cross-section of the society imparted a non-partisan character to the deliberations, enhanced the Assembly's authority and facilitated the general acceptability of the Constitution.
The Assembly accommodated diverse points of view, debated with an open mind, considered and reconsidered ideas and proposals, reviewed and evaluated comparative experiences on the working of similar provisions and institutions in other countries, looked at the constitutional canvas in a futuristic perspective, aware of India's political history, culture, socio-economic dreams and objectives, judicial- legal attitudes and principles, conscious of India's wellsprings of strengths and recesses of weaknesses and helped to raise a magnificent temple of liberty based on the import of unity in the mosaic of diversities and forward looking national self-confidence. Accommodation and concord characterize and underpin our Constitution.
The Constituent Assembly met for the first time on December 9, 1946. The inaugural session was presided over by Dr. Sachchidananda Sinha as Provisional Chairman. He was an eminent legal scholar as also a consummate advocate. He delivered an excellent inaugural address affirming his faith in the immortal destiny of India. In his inaugural address he quoted the memorable words of Joseph Story, a great jurist and former judge of the US Supreme Court. The Objectives Resolution articulating the basic values of the Constitution to be adopted was drafted and moved by Prime Minister Jawaharlal Nehru on December 13, 1946 and after a full-fledged debate it was adopted on January 22, 1947. This provided the basis and the inspiration for the Constitution.
To mention some interesting facts: The deliberations continued till November 26, 1949, when the Constitution was adopted. This year is the platinum jubilee of that occasion. The Assembly's sittings were spread over 1084 days- 2 years, 11 months, 17 days. It held 11 sessions covering 165 days of which 114 days were devoted to the consideration of the draft Constitution. The cost of the whole venture was Rs. 63, 96, 729/-. Not less than 53000 visitors were admitted to the Visitors' Gallery when the Constitution was under consideration. The Indian Independence Act, 1947 passed by the British Parliament was repealed underscoring the idea of the Constitution being wholly Indian.
This is the saga of the framing of our Constitution which according to Granville Austin was 'the greatest political venture since that originated in Philadelphia in 1781'.
Apart from Dr. Ambedkar, who was the Chairman of the Drafting Committee and whose role in the making of the Constitution is too well known to require any recall, we need to gratefully remember and pay tribute to two other person- Sir Benegal Narsing Rau, the Constitutional Adviser to the Constituent Assembly and Surendra Nath Mukherjee, the Joint Secretary, Constituent Assembly and the Chief Draftsman of the Constitution. B.N.Rau brought to his work his brilliance, erudition and rich experience and prepared the first draft which was the basis for discussion. He also enabled the other members to perform their duties with thoroughness and intelligence by supplying them with the material on which they could work. All his work in the Constituent Assembly was honorary. So impressed was Justice Frankfurter with Rau that he remarked,” If the President of the USA were to ask me to recommend a judge for our Supreme Court on the strength of his knowledge of the history and working of the American Constitution, B.N.Rau would be the first on my list.” Mukherjee meticulously drafted the various provisions of the Constitution that was finally adopted. As Dr Ambedkar said on the eve of adopting the Constitution, S.N.Mukherjee had the ability to put the most intricate proposals in the simplest and clearest legal form and without his help the Assembly would have taken many more years to finalize the Constitution.
Our Constitution has, undoubtedly, drawn from many sources, it is a happy blend of many strains. In particular, the Government of India Act, 1935 is the edifice on which the Constitution has been raised. But there is nothing wrong in borrowing, in adopting ideas and adapting them. As Dr. Ambedkar said, “There is nothing to be ashamed of in borrowing, it involves no plagiarism. Nobody holds a patent right on the fundamental ideas of the Constitution.” As Voltaire put it profoundly, “Originality is nothing but judicious imitation. The most original writers have always borrowed one from the other.”
It is appropriate to recall all this and remember with gratitude and reverence the founding fathers and their contribution and remind ourselves of certain fundamentals. It has been rightly remarked by Prof. Upendra Baxi that we live in an era of massacre of ancestors which is now considered a public virtue and a sign of progress. But collective amnesia of what happened in the past is not an estimable value. Without living in the past its recall is important for it necessarily presages a future. We cannot forget or overlook the enduring relevance of the past or its torch-bearers. It is in that spirit that we pay homage to the founding fathers.
There are two fundamental ideas which underpin the Constitution: The value of liberty- the idea that will and not force is the basis of government; and the value of justice- that right and not might is the basis of all political societies and of every system of political order. John Locke's Social Contract Theory –that law is the expression of the will of the people- is reflected in our Constitution.
As with most of the modern constitutions, the opening words of the Preamble emphasise the ultimate authority of the people from whom the Constitution has emerged. The Constitution has established a sovereign, socialist, secular, democratic republic to secure to all citizens Justice, Liberty, Equality, and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the nation. “The Preamble to the Constitution is the declaration of our faith and beliefs in certain fundamentals of our national life, a standard from which we must not depart and a resolve which must not be shaken.” The emotive words Justice, Liberty, Equality, Fraternity open up a vast music of hope. They are words of passion and power and may be said to be the spiritual pillars of the Constitution. These concepts along with constitutionalism, democracy and the rule of law are the bedrock on which a conflict-free society rests.
Peace is the fruit of justice. A peaceful and orderly society is what all of us seek. Justice is the greatest interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. It cements the fabric of a secure society. Our Constitution represents a charter of power granted by liberties and not a charter of liberty granted by power. Apart from providing a broad framework of government, it endeavours to protect liberties and secure justice. That is the constitutional vision and goal. The justice provisions in Part IV are declared fundamental to the governance of the country and underlie all human development. Democracy is not just a legal, constitutional, formal concept. It is also a social idea. The Constitution is not merely a legal document, it is first a social testament as also a political instrument. It may be said to provide for stability without stagnation and growth without destruction of essential values. A majority of the provisions are aimed at furthering the goals of the social revolution. The core of this commitment lies in Parts III & IV which together with Part IVA and the Preamble may be said to be the conscience of the Constitution; the judiciary is the conscience keeper. The Constitution's greatest gift has been an open society. The individual lies at the core of the constitutional focus and the ideals envisioned in the Preamble animate the vision of securing for him a dignified existence.
Rule of law is the subordination or subservience of the executive to the legislative will, i.e., every executive action must have the support or backing of law. Under rule of law, the law is pre-eminent and is a check against abuse of power while under rule by law, the law can serve as an instrument for government to suppress in a legalistic fashion. Rule of law does not content itself with ensuring legality. It goes further to speculate on the limits on the extent of power government can have. The question is not just what legal authority government has for what it seeks to do. More significantly it is 'what legal powers ought the government to have.' Thus, the rule of law is concerned not merely with the existence of a law but also its normative content. The Constitution is meant to impart such a momentum to the living spirit of the rule of law that democracy and liberty may survive in India beyond our own times. The rule of law in all its facets, ramifications and implications underpins the Constitution.
But in countries like ours with a written, justiciable constitution, the legislature is also subordinate to constitutional rights and values and limitations. That is the concept of the absolute reign of law: the legislative power too is subject to constitutional limitations. Thus, in India, we have not only the rule of law, but also the absolute reign of law.
A written constitution with a Bill of Rights, like ours, seeks to place certain human rights and fundamental freedoms beyond the reach of ordinary laws because these rights do not depend on the whims of an amoral majority or the outcome of any election. That is especially so as regards life and liberty. Such rights are not the gift of any law or the constitution. Instruments like Bills of Rights respond by recognising rather than creating or conferring them. As Prof Edward Corwin said, “They owe nothing to their recognition in the constitution, such recognition was necessary if the constitution was to be regarded as complete.” Thomas Jefferson writing to James Madison in 1787 said that 'a bill of rights is what the people are entitled to against every government on earth.'
The historical and political developments in India made it inevitable that a Bill of Rights or Fundamental Rights as we call them should be enacted in the Constitution. Constitutional guarantee for human rights was one of the persistent demands of the leaders of our freedom struggle. One important feature about the fundamental rights guaranteed by our Constitution may be noted. There is no provision in our Constitution corresponding to the Ninth Amendment of the US Constitution according to which the American people are not denied the enjoyment of other fundamental rights because of the fact that the Constitution enumerates certain rights as such. That means that whatever is not expressly withheld is also available to the people. The enumeration of certain rights is not to be construed to deny or disparage other rights retained by the people. This is understood and interpreted as an invitation to identify unenumerated rights. On the other hand, in India no one can claim a fundamental right outside the chapter on Fundamental Rights. But this has not prevented our courts from expounding new rights as emanations of the enumerated rights. This is one of the most fascinating sagas. Indeed, more than 25 rights have been read into the provisions of Article 21 alone.
The Constitution being the supreme law, no organ or institution has unfettered powers, all derive their powers from the constitution and have to function within those limits. In a constitutional democracy with a written constitution and an entrenched bill of rights and wedded to the rule of law what prevails is constitutional supremacy – all organs being controlled and regulated by the constitution and functioning within the confines of their power with the judiciary constituted the arbiter of the functions of all organs as grantees under the constitution. This is constitutional supremacy.
None of the wings or units has a monopoly of wisdom and in the pattern of functional distribution of State power there is hardly any room for real supremacy. Limited government and judicial review constitute the essence of our constitutional system. It involves three main elements: (i) a written Constitution setting up and limiting the various organs of Government; (ii) the Constitution functioning as a superior law or standard by which the conduct of all organs of government is to be judged; (iii) a sanction by means of which any violation of the superior law by any of the organs of government may be prevented or restrained and, if necessary, annulled. This sanction, in the modern constitutional world, is 'judicial review' which means that a court of competent jurisdiction has the power to invalidate the act of any governmental agency, including the legislature on the ground that it is repugnant to the Constitution. Verily, the structure of the government under our constitutional scheme is so designed that each branch is a sentinel on the qui vive against the other two, lest they become too powerful or autocratic. The Court's fidelity to the Constitution secures its own subordination, though it has the last word in the interpretation of the Constitution, and it is the final judge of all acts purported to be done under the authority of the Constitution. But fidelity and creativity are not necessarily opposed, with devoted insight they may enhance each other.
As M.K. Nambyar, our great Constitutional lawyer and visionary wrote in an unpublished article, The Contours of the Constitution, “Every system of government that is born of revolution, violent or non-violent, bears the indelible impress of the impulses of its being. It mirrors the struggles of the past in its provisions to ensure the security of the future. It represents the aspirations, achievements and ambitions of a people. No constitution is merely a collection of clauses or the handiwork of skilled draftsmanship. It is an organic growth springing from the forces of the natural vitality, and changing in colour and content in the process of time.”
The constitutional experiments in India may be said to be a saga of statesmanship, hope and faith. There were sublime moments in this task. There were also times of anguish, distrust, travails, and turmoils. But the overall response of the Indian State to the democratic aspirations of the people and the urges of Indian nationalism has been one of great satisfaction.
In his First Inaugural Address in 1801, President Jefferson qualifying the majority principle, insightfully remarked thus, “All too will bear in mind this sacred principle that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable, that the majority possess their equal rights which equal law must protect and to violate it would be oppression.” We see the practical operation of this reflected in the limitation in Article 13(2) of our Constitution which forbids the passing of a law taking away or abridging fundamental rights.
There are thus two institutions which seem to be fundamentally contradictory. There is first the institutionalization of the principle that the will of the majority must prevail, and that government must conform to its will as per the democratic principle. As against that is the institutionalization of the principle that powers of government are limited, that there are things which even a majority cannot do as they are beyond the ambit of the legislature and the executive.
The democratic ideal involves two strands, as Lord Steyn remarked. First, the people entrust power to the government in accordance with the principles of majority rule. The second is that in a democracy there must be an effective and fair means of achieving practical justice through law between individuals and between the State and individuals. Where tension develops between the views of the majority and individual rights a decision must be made and sometimes a balance has to be struck. The best way of achieving this purpose is for a democracy to delegate to an impartial and independent judiciary this adjudicative function. Only such a judiciary acting in accordance with principles of institutional integrity and aided by a free and courageous legal profession, practising, and academic, can carry out this task, notably in the field of fundamental rights and freedoms. Only such a judiciary has democratic legitimacy. The judiciary owes allegiance to nothing but the constitutional duty of reaching through reasoned debate the best attainable judgments in accordance with justice and law. This is its role in the democratic governance of countries. At the root of it is the struggle by fallible judges with imperfect insights for government under law and not under man.
Democracy is essentially a balance between constitutional rights and public interests. It is for the courts to maintain this delicate balance. What prevails in a constitutional democracy is constitutional supremacy- all organs being controlled and regulated by the Constitution and functioning within the confines of their powers with the judiciary constituted the arbiter. As the Supreme Court has said it is for the court to protect the rights and liberties, to uphold constitutional values and enforce constitutional limitations by acting as a sentinel on the qui vive. This is the judge's primary role: protecting the constitution and upholding the rule of law. Limited government and judicial review is of the essence of our constitutional system.
It is very often by judicial interpretation that you enliven and make purposeful the constitution or the law. Done wisely and with necessary circumspection, judicial law making within limits is both laudable and legitimate. Judicial response to different fact situations varies and it is an accepted fact of constitutional interpretation that the content of justiciability changes according to how the judges' value preferences respond to the multi-dimensional problems of the day. An awareness of history is an integral part of those preferences.
The rights and values envisaged by the Constitution are not merely material. Constitutionalism implies limited government. Public law has seen a movement from a culture of authority to one of justification where power and its exercise is made answerable. The judiciary, particularly the Supreme Court, as a vital institution of democratic governance has helped to inculcate and foster a constitutional culture and infuse all State actions with constitutional ethos. All seemingly wide and unfettered powers of the State are tempered by constitutional limitations to be exercised in accord with public law principles and subject to judicial review and correction depending on the nature of the function. This may be said to be of the very essence of the protection of civil and political liberties. But that is not all. The Court has been equally solicitous of the socio-economic rights. In India the scheme for the realization of the socio-economic agenda comprises both the justiciable Fundamental Rights and the non- justiciable Directive Principles. The judicial contribution to their synthesis and integration has been crucial to the realization of the goals set out in Part IV both as a means to effectuate the rights guaranteed under Part III and also as a source of law for a welfare State. The Supreme Court, particularly after the first two decades, harmoniously interpreted Parts III and IV. The judiciary has much to be proud of.
Realizing the constitutional vision of justice is really good governance. The consummation of the Constitution is when justice reaches out to everyone, everywhere as contemplated and mandated by the Constitution. A constitutional democracy can work only under institutional safeguards. A cultivated respect for law and enduring institutions are therefore important. An unfailing index to the maturity of a democracy is the degree of its respect for unwritten conventions. What is left unsaid in a constitution is as important as what is said, and the constitutional equilibrium can be preserved only by Obedience to the Unenforceable, both by the citizens and the government.
The first fifteen years of the Supreme Court may be characterised as a conservative era. The interpretation and exposition of the Constitution was generally textual. However, the Court while giving deference to legislative wisdom acted firmly in various areas in striking down impermissible legislations. But that was mainly in the area of fundamental rights relating to property, agrarian reforms and trade and business. It was, of course, during this period that Art 14- the doctrine of equality, the concept of discrimination and the theory of classification were clearly evolved and that has stood the test of time. The Court held that freedom of press was included in the freedom of speech and expression. It has been rightly said that in its initial years the Court was manned by a band of erudite and dedicated judges who in the cases before them generated a disciplined and learned debate free from bias and acrimony. Judicial power in their hands did not foreclose the future. The doors were often closed but not bolted. The judgments of that era set the tone and direction along which made subsequent journeys and laid the solid foundations for the future. The Court defined a range of concepts and principles and delineated the various parameters Thereafter from the mid 1960s onwards we see a perceptible change with the Court adopting a more activist and dynamic approach.
The Supreme Court took great strides in developing Constitutional law. The great theme in the history of our Constitutional law is the concept of law as a check upon public power. That idea has been given practical reality in the decisions of the Supreme Court. Those decisions are, to paraphrase Justice Holmes, a virtual magic mirror in which we see reflected our whole constitutional development and all that it has meant to the nation. There are indeed many decisions which are commendable and trail-blazing-carrying the law forward, translating constitutional phrase into reality making it more meaningful to the people, enforcing the checks and balances in the constitutional scheme and legal control of government and public authorities. It is startling to imagine what would have been the position if these cases had not come up before Court and not been decided as they were. Today, years later, many of those decisions which shaped our constitutional law and helped to raise its edifice brick by brick may seem easy and in the natural course of things. But things did not happen overnight. Great judges moulded the law and took it forward most of the time slowly and cautiously. But they were truly revolutionary changes that were brought about.
A shrewd US politician referring to their Constitution remarked, “We the People is a very eloquent beginning. But when that document was completed on 17.9.1787, I was not included in that We the People. I felt somehow for many years that George Washington and Alexander Hamilton just left me outside by mistake. But I realized that it is through the process of interpretation and Court decision that I have been finally included in We the People.” This also describes the role of the Indian judiciary particularly the Supreme Court. By interpretation and Court decision it has broadened the reach of the Constitution's provisions and made them meaningful to the common man.
In India the scheme for the realization of the socio economic agenda comprises both the justiciable Fundamental Rights and the non-justiciable Directive Principles. The judicial contribution to their synthesis and integration has been crucial. The Constitution promised a peaceful revolution. The Supreme Court particularly after the first two decades harmoniously interpreted Parts III and IV. Judicial interpretation led to the reading into and inclusion of various rights as emanations successfully endeavouring to translate human rights rhetoric into action. The attempt has been towards integration of the Fundamental Rights and Directives in the process of constitutionising socio-economic rights. It may be said that Human Rights and Public Interest Litigation have reinforced each other. In the evolution of our constitutional and judicial experience there is evident a continuous flow of thought as to how values of human rights and international instruments can inspire constitutional interpretation for establishing and promoting an egalitarian society. The foundation for the development of our constitutional jurisprudence and the expansion of liberties was the discarding of the theory that fundamental rights are water-tight compartments. Arts 14, 19, 21 form a vital trilogy of constitutional provisions whose ethos informs one another. They have been referred to as the three sides of the golden triangle. Justice Fazl Ali's dissent in Gopalan was accepted as the law in the Bank Nationalization case and reiterated in Maneka and thereafter.
Natural justice came into its own. The distinction between administrative and quasi-judicial powers was obliterated. The right of being heard was held to be an essential requirement of all actions and orders having civil consequences. Non arbitrariness in State action became the non-negotiable norm. The doctrine of promissory estoppel was placed on a firm foundation. Cases like Royappa, Maneka Gandhi, Mohinder Singh Gill, Ramana Dayaram Shetty carried much further the frontiers of Constitution law and Administrative law, though petitioners therein did not get any relief. The right to life and liberty received an explosive expansion with cases relating to jail reforms and rights of under trials. The law, particularly criminal law, was humanized. The evolving jurisprudence re: death sentence infused that area of the law with Constitutional values. Art 21 reached its full plenitude when it was emphasised that life is not mere animal existence but it is to live with dignity and the inhibition against its deprivation extends to all limbs and faculties by which life is enjoyed. Award of compensation in writ jurisdiction as remedy for public tort- for violation of Art 21- was accepted and given effect to. Olga Tellis is a classic example of second generation rights being judicially recognised and protected. The Court has thereafter travelled far and wide in that direction. New tools of judicial review have been employed like concepts of proportionality and legitimate expectation so as to effectuate legal control of government and protection of the people's rights.
Now judges have become the trustees of a new conception of 'limited' government —limited, that is, by constitutional and also by transnational mandates. At the same time, they have also become the trustees of an 'enlarged' government—enlarged, that is, to fulfill the new goals of the social state, observes Mauro Cappelletti. The standards of fiduciary conduct set by Cardozo for even an ordinary trustee is that “he is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honour the most sensitive, is the standard of behaviour.” What then to say of a constitutional trust at once so lofty and so noble!
Royappa and the line of cases following it revolutionized the dimensions and nuances of Art 14. Maneka Gandhi infused new life into Art 21. All actions of the State must pass the test of non-arbitrariness; they have to be reasonable, fair and just. Beginning with State of Rajasthan and then Bommai and Rameshwar Prasad are high water marks of judicial review to check the misuse of Art 356. D.C Wadhwa held that all powers are tempered with constitutional limitations and a colourable exercise of power is an anathema to our constitutional scheme. Epuru Sudhakar reiterated the amenability to judicial review of the exercise of pardon power. The doctrine of pleasure was subjected to constitutional culture and limitations in B.P. Singhal, a case dealing with removal of governors. Maharaja Dharmander Prasad Singh is a significant case concerning private law- property law- and the nuances of public law and the interface between them when one of the parties is 'State' and that all State actions must have a legal pedigree. In the latest case of State of Punjab v Governor of Punjab the Court laid down guidelines for, and the parameters of, the exercise of power under Art 200- re: assent to Bills. Somehow a myth had developed that assent is not justiciable. No case had dealt with it earlier and laid down any such proposition. There was only some passing observation in some cases. Purushothaman Nambudiri which is sought to be relied upon was not concerned with assent. It was about the lapsing of a Bill on prorogation or dissolution. It may now be taken that assent/non-assent is justiciable, whatever the extent and nuances of justiciability. Reference may be made to Joginder Singh and D.K.Basu too. All these are instances of judicial review being invoked for enforcing limited government- limited by constitutional mandates, values and limitations. In Bank of Cochin and Vishaka transnational mandates of International Treaties and Conventions not inconsistent with domestic law were called in aid to interpret national law to limit State/governmental power and enlarge personal rights and liberty. It is thus that judges discharge their obligation of trustees of limited government.
The constituent power itself was held to be limited in Kesavananda Bharati: while any part of the Constitution may be amended, the amendment should not be such as would abrogate the essential/basic features of the Constitution or damage its basic structure. This was reiterated in Indira Gandhi and Minerva Mills. The idea behind the basic structure doctrine is to ensure that by the process of amendment the Constitution is not denuded of its core or made to suffer a loss of identity. A constitution when it is framed and adopted tends to reflect the dominant beliefs and interests, political, economic and social, or some compromise between such conflicting interests and beliefs, prevalent in society at that time and which the framers believed would be accepted by the people at large. A constitution must necessarily be susceptible to and capable of change. It cannot be frozen in time or ideas. Hence, it is important that in appreciating an argument about violation of the basic features or basic structure of the Constitution, one cannot ignore the essential, organic and evolutionary character of a constitution and its flexibility as a living entity to provide for the demands and compulsions of the changing times and needs.
Coming to trustees of an enlarged government to fulfill the goals of the social state, we may refer to the admirable/remarkable, and largely successful, endeavour of our courts to integrate and synthesise the rights in Part III and the objectives in Part IV. It is this approach of balancing and harmonizing that has helped Indian society and the legal system to forge ahead with our social welfare measures endeavouring to create a climate of happiness and security. The various socio economic rights and legislative measures in that behalf, in a way, “represent the myriad lights and shades of India's life, the contrasting tones of poverty and wealth and of bread so dear and flesh and blood so cheap, the deep tints of adventure and enterprise and man's ageless struggle for a brighter morn.” Judicial interpretation led to the reading into and inclusion of various rights as emanations successfully attempting to translate human rights rhetoric into action. The experience has been fascinating and heart warming.
Bank of Cochin case is an example of this also. Ratlam Muncipality is another. These, no doubt, were appeals, not cases of judicial review. But judicial power was unsheathed. Statute law, common law and international instruments like treaties and conventions were resorted to enforce the obligations and realize the social goals of a modern welfare state. Olga Tellis, M.C. Mehta, UCC, et al are cases in point. NLSA recognized transgenders as a third gender and recognized their rights. Shayara Bano did away with Triple Talaq. Navtej Singh Johar decriminalized homosexuality. Jeeja Ghosh recognized and granted protection to the rights of differently abled persons. X v Principal Secretary concerned medical termination of pregnancy of an unmarried woman and the social stigma surrounding pre-marital sex and pregnancy in unmarried women. Budhadev Karmarkar issued directions for rehabilitation of sex workers. All these are only illustrative.
More than sixty years ago Lord MacDermott in his Hamlyn Lectures of 1957 spoke of law as a protection from power. In these decades that have gone by public law has grown by leaps and bounds, its tools have been innovated, sharpened, and refined. The contours of judicial review have been drawn with sharper edges. It effectively serves as a shield against the onslaughts of power of different genres.
The march of science and technology and the interplay of economics and social sciences and law and the influence of all this on the existing political and legal institutions cannot be overlooked. All this throws up newer challenges and offers more creative possibilities for judicial review. This calls for a robust and balanced exercise of the power of judicial review in fulfilling the obligation of trustees of an enlarged government. The Constitution has to be judiciously and wisely worked in order to realize the constitutional vision of justice and to ensure that it remains workable in a broad sense. This requires applying unchanging constitutional principles to changing circumstances 'to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs'.
The invention of new weapons of mass destruction funded by the government, manufacture of genetically modified seeds which can bring about harmful changes in humans, thus increasing ethic neutrality, distribution of freebies among the people which would have an adverse impact on the economy, pampering the citizenry with the so called good things of life so that their attention is turned away from public life and participation in democracy and their interest in and concern for what governments do are diminished, are, or should these be, among other issues susceptible to judicial review?
Would Holmes's famous aphorisms pointing in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community and that he had, for example, no "practical" criterion to go on except "what the crowd wanted" always hold good? Are there not situations where judicial review and activism become a duty? These are issues for which one can provide no straight and simple answers. They would certainly trigger a debate on the potency, validity, and limits of judicial review. Whether judicial review should address these matters is a question that I have not discussed here, whether it will, and if so how, is a question for another day.
Having said all this about the need and the importance of constitutional exposition and the exercise of judicial power, particularly of judicial review, it is equally necessary to enter a caveat.
In the process of interpretation and in deciding matters judges make law, but only interstitially. Law is moulded and sometimes changed by this process which is quite legitimate. However, this is subject to legislative oversight, amenable to being overruled by the legislature by enacting a new law. It is thus subject to correction by popular sovereignty- the people who elect the legislators can influence and have the law changed. That is the theory in any case. It is, however, not uncommon now for the court to exercise full-fledged legislative and executive power and travel into realms not its own. In this process of legislating or issuing directions touching matters of law and policy many constitutional limitations are breached. Legislative and executive actions are tested and corrected by the judiciary. But judicial action which partakes of both executive and legislative nature leaves one aghast and remediless. If the salt has lost its savour, wherewith shall it be salted?
The judiciary, particularly the Supreme Court at the top of the judicial hierarchy, hands down various significant decisions-leading judgments in different fields. Our Supreme Court in its 75 years of existence has rendered momentous decisions which have moulded the law, established a new principle or given the law a new emphasis or direction and impacted the life of the people and the nation and some have also influenced juristic thought and jurisprudential trends in other jurisdictions as well.
It is to be remembered that even dissenting judgments can be landmarks and provide an impetus. Many times today's dissent becomes the law tomorrow. A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day. It is an appeal not only to the intelligence of a future day. It is also sometimes a call to, and grounding in, traditions and the wisdom of the past ages reared by experience and discernment which the dissenting judge believes the majority to have missed. It is an endeavour of resisting the temptation to fall a prey to the seemingly attractive and stray away from the rather arid path of constitutional process. “The dissenter speaks to the future and his voice is pitched to a key that will carry through the years.” Dissents contribute to the development of the law through their prophetic potential. They offer new possibilities for the evolution of the law. They may sometimes fructify into new fundamental legal principles.
It is not inapposite to make another comment. A good judgment is characterized by brevity and precision. But many judgments these days are very lengthy, verbose and tiring, one tends to lose the focus. They are more like research thesis. Not unoften they are characterized more by rhetoric. Many a time it is difficult to know what exactly has been decided. It is sheer journalese. Judicial statesmanship has given way to intellectual showmanship. But read the judgments of yester years and see and admire the profundity of ideas and the elegance of expression, all that done pithily with precision.
The memorable words of one of the Framers of the American Constitution, James Madison in The Federalist come home with a strange poignancy, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” Judicial review and legal control is one such auxiliary precaution.
Judges tend the gate between order and anarchy. The role and contribution of our judiciary, especially the Apex Court, in realizing the constitutional vision has been quite impressive. The judgment of the Indian people will be that their constitutional rights are safe in the hands of the Court though on occasions the Court might have erred and not lived up to the trust and expectations and its judgments might have run counter to the better judgment of the community. At the end of the day, in spite of some ups and downs and well-meaning and justified criticisms, what was said about the American Supreme Court by Chief Justice Charles Evans Hughes, “The Republic endures and this is the symbol of our faith” truly applies to our judiciary, especially the Supreme Court.
Z. Alkins, T. Ginsburg and J. Melton in their interesting and enlightening book, 'The Endurance of National Constitutions' say that the average life span of a written constitution is 19 years; only a handful last longer than 50. The factors which help a constitution endure have been identified by them as specificity of its provisions, flexibility of the amending process and inclusiveness. And we may add a robust judicial process. Surrounded by neighbouring countries which are like deserts where constitutions have come and gone and a constitutional way of life is fanciful, we are an oasis: our Constitution is 75 years old, or I would say young.
The Centennial Volume, "Fourteenth Amendment" edited by Bernard Schwartz, contains an article on "Landmarks of Legal Liberty" by Justice William J. Brennan in which he writes: In the service of the age old dream for recognition of the equal and inalienable rights of man, the Fourteenth Amendment though 100 years old, can never be old. Our Constitution and the Court too stride in their majesty with youthful vigour. However old they may be, they can never be old. They will, and should, endure. As the stars that are starry in times of darkness, to the end, they would belight and remain. The Constitution will remain and be alive long after this land knows us no more and the raucous voices of today are lost in the silence of the centuries.
The journey of the world's largest democracy, its foundational document- our Constitution and the Supreme Court expounding its meaning and content has been truly fascinating.
The successful working of a constitutional democracy depends upon not mere allegiance to the constitutional provisions and principles but imbibing a constitutional culture. It is necessary to build and nurture a constitutional culture which people from generation to generation will have to cherish and nourish. Constitutional values and aspirations will have to be internalised in the psyche of the nation. We need to develop and always have a decorous regard for and play by the rules of the constitutional game.
The Constitution belongs to us, the people. In the unforgettable words of Justice Felix Frankfurter, “Democracy involves hardship- the hardship of the unceasing responsibility of every citizen. Where the entire people do not take a continuous and considered part in public life, there can be no democracy in any meaningful sense of the term. Democracy is always a beckoning goal, not a safe harbour. For freedom is an unremitting endeavour, never a final achievement. That is why no office in the land is more important than that of being a citizen.” Therefore, it is that we need to constantly remind ourselves that the Constitution- our treasured inheritance which we have to cherish- is presently in our keeping and that we, at once its servants and its masters, renew and maintain our allegiance to the Fundamental Charter. On an occasion like this- the Platinum Jubilee of the Constitution- we can have no better wish than that the spirit of the Constitution animates our beings and its light illumines all our thoughts, words and deeds.
[Lecture at the Kerala High Court on December 9, 2024 organized by the Kerala High Court Senior Advocates' Association to mark 75 years of the Constitution]
Author is a Senior Advocate, Supreme Court of India. Views Are Personal.