Constitutional Institutions Important To Check Abuse Of Power & Safeguard Rights : CJI DY Chandrachud

Chief Justice of India DY Chandrachud, in a recent lecture delivered at the Cambridge Law University, highlighted the importance of Constitutional institutions, without which the constitutional rights and values cannot be safeguarded.

He was delivering a lecture on the topic "The relationship between Constitutional Rights and Constitutional Structure" as part of the Cambridge Pro Bono Project Annual Lecture on May 30.

In the lecture, the CJI focussed on four key aspects of the relationship between the citizen and state - Constitutional processes, institutional arrangements for governance, the scrutiny of actions as envisaged by and implicit in the Constitution, and the participation of citizenry in a democracy.

To illustrate the importance of Constitutional structures in protection rights, the CJI referred to famous satirical novella of George Orwell "The Animal Farm". He pointed out that the governance in the "Animal Farm" fell apart because there "were no entrenched rules or institutions of governance, which led to an arbitrary exercise of power".

Drawing an allegory from the novella, CJI said, "the rights regime in the constitution would only be a parchment guaranteed if the Constitution does not establish a  structure that effectively checks the exercise and abuse of power".

For the constitution to stand the test of time, alongside assigning the state the duty to protect the fundamental rights, it must also establish other institutions to create a system of governance, the CJI said. The system of governance envisaged under the constitution is as important as constitutionalism and the fundamental rights because it exercises a check on the powers of the state.

"The expansion of rights framework will be insignificant if the Constitution prescribes a weak form of governance, which does not ensure that the state exercises its power fairly or equitably, or the judiciary interprets the silences in the constitution and interpretative gaps in a manner that would weaken the system of governance", he said.

Each institution meant as a check on the other institutions

Elaborating on the doctrine of separation of powers as propounded by Montesquieu, the CJI said that "each institution is meant as a check on the exercise of power by the other institutions".

He also highlighted that the Constitution envisages a decentralised model of governance, ranging from local self government institutions, states and the Union.

"In this way, the Constitution divides power and creates a system of accountability to minimize the misuse of powers", he said. Apart from the division of powers, the other Constitutional check against abuse of power is procedural guarantee. He explained that procedural guarantees prevent the seepage of bias. A fair procedure is not only a means to achieve a fair outcome but it is a goal in itself. Procedural fairness creates stumbling blocks on the free exercise of power. They are necessary because they suggest that power is not unrestrained.

In this context, the CJI referred to the recent judgment in the Shiv Sena case, in which it was held that legislative procedure was not completely immune from judicial review.

As examples of procedural safeguards, the CJI cited the amendment procedure (which requires a special majority and the approval of majority of state assemblies with respect to amendments to certain articles) and also the Ordinance making power (the restriction on the life of the Ordinance and the mandate to obtain the approval of the assembly within the specified period).

Judicial review

The CJI highlighted that judicial review is a form of scrutiny envisaged by the Constitution as a check on abuse of powers by other institutions.  There are different schools of thought regarding the method of interpretation of the Constitution - one view advocates originalism with a text-based approach, the other view advocates a transformative approach. The judges adopt a fusion of interpretative approaches.

"The text of a written Constitution may be inadequate. It cannot deal with the multitude of situations that may arise. So words like human dignity, freedom, liberty contain within themselves a range of meanings.  The text can also be ambiguous and vague", he said.

In the initial years, the Indian Courts viewed the written text as the ultimate basis of interpretation. Gradually, the Courts started moving away from the plaint text and rather than looking at a singular textual provision, Courts started looking at all parts of the Constitution to derive a deeper and more holistic meaning, which can further the Constitutional values.

Constitutional silences regarding structural arrangements of power are to be understood based on the values of the constitution. The Courts will adopt an interpretation which will reflect and further the values of the Constitution. 

CJI also used the allegory of a rope in this context. A rope will be having different strands and will not remain the same even if one single strand is detached. Similar to numerous strands of a rope forming the rope, the numerous values entrenched form the constitution. They don't necessarily pull in the same direction, they at times pull in divergent directions. But that adds to the strength of the rope which forms the fabric of the Constitution.

The CJI also advocated that there should be more citizen participation in democracy. The Courts' ability to adjudicate the issues does not diminish the space for other democratic processes available for citizens to realise their rights. "Judicial system is not designed to be panacea", the CJI said pointing out that the Courts decide issues mostly on a case-to-case basis. He also underscored the difference between "legal truth" and "social truth". Legal truth, which is based on rules of evidence, must not be confused with the social truth, though they may be overlap. Social truth, although they exist, cannot be always proven in Courts. Therefore, the field of impact of the Courts may be limited in scope.

In this context, the CJI pointed out that there are other methods of holding the executive to account than through approaching courts, such as debates inside and outside the legislature, public discussions etc. Pre-legislative consultations can be a useful tool for informed citizenry to give their views about pending bills. In this context, he mentioned the example of the Kerala Police Act being passed after inviting public comments.

"It is thus important for citizens to engage in a dialogue with each other and with the legislature and the executive arms of the State. Perhaps, that space of dialogue is shrinking. The practice of constitutional values and the organic reorientation of societal practices is essential to achieving the Constitutional vision. Active participation of citizenry in a democratic process is indispensable for realising Constitutional rights"

"It is only by valuing both Constitutional rights and Constitutional structures that an enduring Constitution could be created", CJI said in conclusion.