[Column] 'Constitutional Silences' : By Justice N. Anand Venkatesh

On the given morning, the neighbourhood was relatively tranquil and was so, for quite some time. Ironically, the devil had played its part as COVID19 had bound me indoors providing me with a noticeable increase in my tranquil moments. Today I was goaded by the paradoxical thought to seek for a speech on silence. Before realising it, I was enthusiastically seeking someone speak on silence in TED Talks which eventually led me to Neal Gittleman, Artistic Director of Dayton Philharmonic Orchestra, who also frequently conducts performances of the Dayton Ballet and Dayton Opera.

Neal Gittleman theorises that our dislike for silence leads us to fill it with background music and that every piece of music that he conducts starts from silence and ends in silence. He refers to Beethoven's Fifth Symphony pointing out that there is a fourteen one hundredth of a second of silence before it begins to rapturous explosion of sheer music. Though familiar, I was compelled to listen to the Fifth Symphony with Neal Gittleman's observation, of this miniscule silence, and indeed I was overwhelmed by the sheer burst of music following that tiny spot of silence. The serendipity left me in a magical stupor.

This fortunate experience led me to realise how silence, even a momentary one, can break out into a burst of buoyant evolution. In the present times when solitary confinement and its relative silence is misguidedly perceived as a form of punishment, Aurobindo Ghose, convicted to solitary confinement in the Alipore Presidency Jail, when released, came out as a realised soul and venerated as Sri Aurobindo. The silence of solitary confinement, even though forced, brought out a realisation so great that he has been apotheosized since.

'Flow state' is a term used to denote that state when a person performing an activity, is fully immersed, engrossed with an energized focus and involvement in the activity performed. Athletes refer to it as 'zone' and Jazz musicians, as 'being in the pocket'. Flow state can be appreciated by concepts like trance and hypnosis. This flow state of heightened and focused attention to an activity can only be realised through inner silence, total and complete.

The deep bottomless silence is the state when the ultimate truth in Hindu philosophy is bestowed to convey the ultimate truth itself. Knowledge of cosmic magnitude and the ultimate truth was taught and revealed by Dhakshinmurthi as Brahmopadesa, to his disciples Sanaka, Sananda, Sanathana and Sanat Kumara, and their doubts dispelled, without the utterance of a single syllable. Silence is the medium of the soul's song in a collective commune of the heart, mind and the eternal.

Being who I am, and understandably so, this these thoughts led me to two terms

a) The Basic Structure of the Constitution and

b) The contours of Life and Liberty guaranteed under Article 21 of the Constitution of India, 1950 ("the Constitution")

and to an introspection into how these two terms which remained silent in the Constitution exploded through judicial pronouncements to pave way for the evolution of the Constitution in the last 70 years. While it is true that the separation of powers doctrine closely guards against the judiciary enlarging its own power, it is equally important to recall James Madison's words in the Federalist when he said "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions". These "auxiliary precautions", later evolved as a principle to check the legislative and executive branches from transgressing their respective limits. The Courts asserted unto themselves an exclusive power to say what the Constitution is. As Justice Charles Evans Hughes of the US Supreme Court once said "We live under a Constitution, but the Constitution is what we say it is." This statement is no doubt true of the Indian Supreme Court too.

A good example of the Court interpreting the constitutional silences emanating from the text of the Constitution is seen in the following observations of Justice Robert Jackson in H.P Hood and Sons Inc v Du Mond [336 US 525]

"The Commerce Clause is one of the most prolific sources of national power, and an equally prolific source of conflict with legislation of the state. While the Constitution vests in Congress the power to regulate commerce among the states, it does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this Nation by the meaning it has given to these great silences of the Constitution"

The Constituent Assembly while deliberating on Part III of the Constitution, dealing with Fundamental Rights took note of Constitutions of different countries starting from the American, German, Irish and Japanese Constitutions. Surprisingly, the words "procedure established by law" occurring in Article 21 was taken from the Japanese Constitution. Read literally, this Article merely provided that no person shall be deprived of his life or personal liberty except according to procedure established by law. However, the Constitution does not define the terms "life" and "personal liberty". Viewed from a constitutional standpoint, these terms conveyed much more than its ordinary dictionary meaning. Abandoning a lexicographic approach, the Courts have transformed Article 21 into a repository of unenumerated fundamental rights viz., the right to a fair procedure, right to privacy, right to livelihood, right to a clean and healthy environment etc to name a few. These rights have been fleshed out from the nooks and crannies of Article 21. Today, together with Articles 14 and 19 it forms the very basis of constitutionalism in our country. As Chandrachud CJ puts it in Minerva Mills v Union of India [AIR 1980 SC 1789]

"Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21."

In a similar vein, the term 'Basic Structure' is not found anywhere in the Constitution. The concept developed gradually as a defense mechanism to counter the excesses of the legislature. The theory of basic features or implied limitations on amending power, alluded to by Justice Mudholkar in his minority opinion in Sajjan Singh's Case^[1] ultimately found acceptance in Kesavananda Bharathi's Case.^[2] The question in Kesavananda Bharathi^[3] directly touched upon the power of the Parliament to amend any provision of the Constitution under Article 368. It was heard by a 13-member Bench of the Supreme Court of India for months together and the judges were divided 7:6 in favor of holding that Parliament did not have the power to abrogate certain basic features of the Constitution. Justice H.R. Khanna tilted the scale in this historic judgment by holding that the Parliament has the power to amend any provision of the Constitution, but qualified that statement by holding that in doing so the basic structure of the Constitution is to be maintained. Some of the basic features that were indicated were Supremacy of the Constitution, Republican and Democratic Form of the Government, Secular Character of the Constitution, Federal Character of the Constitution, Separation of Power, Unity and Sovereignty of Indian, Individual Freedom, etc.

The Supreme Court thereafter reaffirmed this doctrine in Indira Gandhi's Case.^[4] The concept of basic structure was further developed by adding judicial review and the balance between Fundamental Rights and Directive Principles of State Policy as parts of the basic structure in the Minerva Mills Case.^[5] In Kihoto Hollohon,^[6] free and fair elections was also added to this doctrine. Indira Sawhney's Case^[7] added Rule of Law to the list. A further dimension and additions were brought about in S.R. Bommai's Case.^[8] The latest is the NJAC Judgment.^[9] The basic structure theory evolved purely out of necessity to ensure that a majoritarian government with its brutal majority should not misuse its power to amend any of the provisions in the Constitution under Article 368 demolishing its basic structure.

Clearest evidence of the invocation of the "constitutional silence" doctrine is seen in Bhanumati v State of Uttar Pradesh^[10]. The issue in this case concerned the validity of the U.P (Panchayat Laws) Amendment Act, 2007. It was contended before the Supreme Court that the provision of a "no confidence motion" in the legislation was inconsistent with Part IX of the Constitution as the latter did not provide for any such ground for removal of a Chairperson of a Panchayat. Rejecting this contention, A.K Ganguly, J observed as under:

"51. Many issues in our constitutional jurisprudence evolved out of this doctrine of silence. The basic structure doctrine vis-à-vis Article 368 of the Constitution emerged out of this concept of silence in the Constitution. A Constitution which professes to be democratic and republican in character and which brings about a revolutionary change by the Seventy-third Constitutional Amendment by making detailed provision for democratic decentralisation and self-government on the principle of grass-root democracy cannot be interpreted to exclude the provision of no-confidence motion in respect of the office of the Chairperson of the panchayat just because of its silence on that aspect."

In Jindal Stainless Steel Ltd. v. State of Haryana.^[11] a 9 judge Bench of the Supreme Court was dealing with the validity of entry tax imposed on goods imported from other States. In this judgment the Supreme Court examined the concepts of "tax" and "federalism". It must be kept in mind that in S.R. Bommai's case,^[12] the Supreme Court had held that even though the Union and the States have the right to enact laws falling under their respective lists, these powers were not symmetrical in nature. Therefore, even though India has a federal set up, the powers under the Constitution gravitated centripetally. In Jindal the question was whether Presidential assent was necessary for the State to levy a tax by virtue of the powers vested in it under List II of Schedule VII of the Constitution. The Court held that in the absence of any express provision mandating the requirement of obtaining such assent, such a requirement could not be read into the provision for that would amount to eroding the pillar of federalism, which is a part of the basic structure of the Constitution. This is an instance of the Court invoking the "door closing silence" doctrine^[13] where the silence was treated as equivalent of the expression of an intention that Presidential assent was unnecessary.

This article came into existence after few minutes of silence. Now that the silence has manifested itself into an expression by way of an article, I am getting into silence again. As Thomas Carlyle famously said "Under all speech and writing that is good for anything, there lies a silence that is better…."