Reimagining The Constitution: The Test For The Judiciary

Since its creation, the Constitutional courts of India have played an important role in shaping public discourse on civil liberties and governance.  In the last seventy years, it has often been through judgements that the democratic interplay between executive, judicial and legislative institutions has come to be defined. The Court has often done this while fulfilling its duty as an anti-majoritarian institution. The 1950’ saw the courts differ with the Government on issues of Zamindari abolition, private property and free speech rights. And in the early 1970’s the Court aggressively diverged with the political establishment over interpreting social and economic rights guaranteed in the Constitution. This tussle was typified in the cases involving the abolishment of privy purses for the princes and the nationalization of banks. Differences of opinions between the political and judicial wing  therefore is not new.

What is new in the ongoing conflicts is its nature. Today the challenge in court from the state is unique. For in this contestation rests the Government’s attempt to reimagine the national movement struggle and thereby the very ideological premise of the Indian Constitution. The Writ Courts being the final authority on interpreting the Constitution, serve as an important source for legitimising such change .

Clash on  social economic interpretation

The wide powers granted to the Courts by the Constituent Assembly reflect their vision of the judiciary as an anti-majoritarian institution. Over the years, Courts have often correctly clashed with political governments on interpreting the Constitution while at other times they have failed and collapsed in face of  political might. And at times, judicial review has been erroneously exercised.

 During the late 1960’s and early 1970’s the Congress Government took two important decisions, first of nationalising banks and the second, attempting through a presidential order, the abolishment of the Constitutional promise of privy purses . Both gave rise to fierce court room clashes .  There was a clear difference of opinion  on  understanding the socio-economic clauses in the Constitution.  In Bank Nationalisation, the Court held that the Constitution recognised the Parliament’s legislative competence to take over banks, but underlined the fact that the right to compensation when obtaining assets could not be illusory. This  even as then  Attorney General Niren De told the courts bluntly that it is  a policy decision and the Court had no business to sit on judgement over the future of economic liberties of Indian citizens. However the bench  headed by  Justice J.C. Shah held that the executive can not violate constitutional rights and claim immunity from judicial review. While in privy purses the Supreme Court held that though a constitutional amendment could make the change of abolishing privy purses but to do so through the presidential order was clearly violative of the Constitutional guarantee promised under Article 291, 362 and 366 (22) of the Constitution. This judgement was significant as it made the point that political majority could not allow the undermining of constitutional procedures, for these processes  ensured checks and balances, the essence of a democratic state.   Soon after, in 1971, the Congress with the now well known “gareebi hatao” campaign promised to implement pro- poor socialist policies. They won the election, coming to power with 352  Lok Sabha seats.   Soon after, In 1975, the Government declared emergency. This period was a true test of judicial independence. The Court was approached by individuals challenging the wide spread detention of Indian citizens. A Bench led by then Chief Justice of India Y.V Chandrachud in the ADM Jabalpur case held that citizens had no right to challenge this incarceration imposed by the Government. This proved to be the darkest hour in the court’s history. A judgement which still haunts the Supreme Court.

Challenge to the premise of the Constitution

As I stated in the beginning, the current political dispensation has  fundamental disagreements with the secular and inclusive values of the  constitution, many of which reflect the principles of the national movement and  those who lead the struggle .  Our constitution is not merely a charter of rights but also a text that safeguards a political vision of India, one imagined by the likes of Jawaharlal Nehru, B.R Ambedkar, K.T. Shah and Sardar Patel. The Sangh Parivar, of which the ruling party is an important component were on the fringes of the freedom struggle and had little role in creating the Constitution. It is this reason why the Bharatiya Janata Party deems it extremely important to recast the very ideas which our forefathers and foremothers represent. This is where the Judiciary becomes greatly important, as their Judgements are binding on peoples of a nation and  would be the final word on what the Constitution signifies.

Our courts have the onerous responsibility of defending the values that have allowed us to be a liberal democratic society. However, recent court orders have made many uneasy. I refer here to the order that made the playing of the national anthem compulsory; the judgement legally obliging one to sing Vande Mataram; decisions on sedition cases premised on a narrow and parochial definition of nationalism; and the discomfort of recognising privacy as a fundamental right. The judiciary appears to be on shaky grounds. The attempt of the State is to embed through law a form of nationalism. Judicial legitimacy of this vision of nationalism would be antithetical to the constitutional idea of India.

The Supreme Court’s decision to make it obligatory for the  national anthem to be played prior to the screening of a movie makes the claim that such an act promotes  patriotism. The order authored by the incumbent chief justice  reasoned that Article 51-A of the constitution makes it a fundamental duty of the citizen to respect the national flag. As we know,  the directive principles of state policy are not enforceable rights. They deal with theoretical ideals which the constitution saw as goals and thereby were to be fulfilled through plural rather than in specific ways.  However, the Court decided to mandate a manner through which the ends must be achieved.  This constitutional recognition of  certain acts as promoting nationalism, makes automatically the act of abstinence as one which is neither  nationalistic nor constitutional! The Madras High court also took up the mantle of promoting this form of nationalism by making it compulsory to play this song across Tamil Nadu. Now, the Uttar Pradesh Government,  following the courts, have issued a circular demanding the  Vande Mataram be played in  Madrasas. When questioned, they am sure will rely on judicial precedent to claim it as an act of ‘constitutional patriotism’; albeit a constitution threatened to be recast.

Similarly, the attempt by the State to use sedition as a tool to define nationalism and subvert free speech has been seen across the country. The political regime  is seeking to curtail free expression by creating fragile and narrow boundaries within which speech must be articulated. Significantly, The Delhi High Court made certain judicial strictures while granting bail to the two students accused of seditious sloganeering in Jawaharlal Nehru University.   Eighteen months later, the police is yet to file a charge sheet against one of the main accussed . The order warned the students to introspect and viewed the students as being ‘infected’ and needing to be ‘cured’ soon.  Freedom to protest and dissent were both  cautioned, the Court seemed to accept the government’s mandated view on nationalism .  This, even though nationalism as a political and legal idea is not defined in our constitution and no government in India can ever seek to impose legal recognition to such an idea.

Regarding the issue of privacy, it took a year, and two Attorney Generals to accept that privacy could possibly be a fundamental right. There is little doubt that the Court would recognise privacy as an exalted liberty. However, the nature of this recognition within the constitution is what will be up for debate. Here again the slippery ideas of “public security” and “national good” will take centre stage when defending the right to collect personal information from citizens.

The Judiciary will see the political executive take decisions that will attempt to slowly change the constitutional idea of India, one engraved in the preamble and seen by the present regime as embodying  the Nehruvian mandate. The battle over the text that defines India is well underway and though the BJP may not be able to rewrite history,  without an alert and strong judiciary, they may just  rescript the philosophical foundation of the  constitution.