God Save Indian Democracy

The Constitution of India is a politically sacred legal document that was meticulously and painstakingly drafted. It enshrines the ideals cherished by the founding fathers of the new Republic. But I am afraid it is progressively ceasing to be of any relevance in the orderly governance of the country. Within about 70 years, it has been reduced to a holy book worthy of veneration without following either its letter or spirit.

In fact, it has become a source of power—for misrule for each of the three great branches of the government established under the Constitution. Incumbents of various constitutional offices by and large seem to lack enthusiasm to either study the text of the Constitution or understand its scheme. It has become only a source of authority over the people of India without caring for its noble purpose. Its articles are mindlessly chanted as if they are the hymns of Vedas.

The high priests of the Indian Constitution are the judges of Constitutional courts. Even they are happy with clichés, esoteric phrases and quotations from long deceased lawyers and judges from other countries. A case in point is the recent farce, occasioned by the creation of the new High Court for the (new) State of Andhra Pradesh. The existing state of Andhra Pradesh (as it existed from 1956 to 2014) was bifurcated by an Act of Parliament titled the Andhra Pradesh Reorganisation Act, 2014. It created two new states of Telangana and Andhra Pradesh. The said Act contains various provisions required for the creation of the two new states.

Since it is the mandate of Article 214 of the Constitution that there shall be a High Court for each state, Sections 30 and 31 of the Reorganisation Act declare that a separate High Court for the state of Andhra Pradesh is required to be "constituted" and the High Court of Judicature at Hyderabad "shall become" the High Court for the state of Telangana. However, the High Court of Judicature at Hyderabad is nothing but the erstwhile High Court for the then state of Andhra Pradesh whose territorial jurisdiction was the sum of the two new states. But the High Court of Telangana now has territorial jurisdiction over a part of the territory over which it had earlier exercised full jurisdiction.

The Reorganisation Act is silent with regard to the date on which a separate High Court for the state of Andhra Pradesh is to be "constituted". It is also silent about the process by which a separate High Court is to be constituted. To illustrate the point, we may refer to Section 28 of the Andhra State Act, 1953. It provided that either from the first day of January 1956 or from some other earlier date to be determined by the President by a notification, there shall be a separate High Court for the state of Andhra Pradesh. Section 28(3) declared that the principal seat of the High Court shall be at such place as the Governor of Andhra may decide. Similar provisions are to be found in the States Reorganisation Act, 1956, Bihar Reorganisation Act, MP Reorganisation Act and Bombay Reorganisation Act by which Jharkhand, Chhattisgarh and Gujarat were constituted

In each of the above mentioned enactments, provisions were made indicating the procedure for fixing the date on which the newly constituted High Court is to come into existence, where its seat is to be located and directing the competent authority to determine these issues. The basic authority of law for the constitution of a new High Court is unequivocally provided by Parliament. Unfortunately, we do not find such statutory provision in the 2014 Act with respect to the date on which the new High Court shall come into existence. Nor is the power to determine such a date delegated to any other authority, be it the President of India or someone else.

However, a new High Court for the state of Andhra Pradesh is purported to have been constituted by a notification published in the Gazette of India on 26 December 2018 signed by the President of India. The notification refers to a judgment of the Supreme Court in the case of Union of India vs B Dhanapal SLP 29890/2018 and states that by virtue of the said judgment, the competent authority could issue a notification bifurcating the High Court of Judicature of Hyderabad into the High Court of Telangana and the High Court of Andhra Pradesh, respectively.

The question is who is the competent authority? Under the hallowed doctrine of the rule of law, competence for performing any public act in a country governed by a constitution flows either from the Constitution itself or by any law validly enacted under the Constitution. I have already mentioned that the Reorganisation Act of 2014 is absolutely silent with respect to the authority who is competent to determine the date. Yet the rulers of the country and the state believe it could be done by a notification issued in the name of the President.

The most hilarious part of the episode is that those judges who continued at the High Court of Telangana, which is nothing but the original High Court of Andhra Pradesh, now with a truncated territorial jurisdiction, were also administered fresh oaths. No fresh warrants of appointments were issued—in my opinion, rightly. But at the same time, no fresh oath is required either on a proper analysis of the scheme of the Constitution or on the strength of precedent. When the Andhra High Court was created in 1953, carving out the territorial jurisdiction from the parent Madras High Court, those judges remaining at Madras did not take any fresh oath. Same is the case with judges of Bombay, Patna and Madhya Pradesh High Courts when the new High Courts of Gujarat, Jharkhand and Chhattisgarh were created. Examples could be multiplied. However, the judges remaining at the High Court of the judicature at Hyderabad, now called the Telangana High Court, were administered fresh oaths. At both the events in Andhra Pradesh and Telangana, some sitting and former judges of the Supreme Court graced the occasion.

Following the death of the then President Zakir Husain in office in 1969, the Vice President who was officiating as President, resigned so as to contest the presidential elections. The situation demanded, under the Constitution, for the Chief Justice of India to officiate as the President of the country. M Hidayatullah became the officiating President.

A Money Bill was sent to him by the government. Under Article 117(1) of the Constitution, a Money Bill can be introduced in Parliament only with the 'recommendation' of the President. If the Bill is passed in both Houses of Parliament, it is once again sent to the President for his assent. There is a critical difference. Recommendation of the President is for the Bill being introduced in Parliament. The Presidential assent transforms the Bill into a formal law.

The file put up before Chief Justice Hidayatullah mistakenly sought his assent prior to the introduction of the Bill in Parliament. Had Hidayatullah been as oblivious, or ignorant, or cavalier about the Constitution, his signature to the assent document would have bypassed Parliament entirely and the Money Bill would have become a valid law for India.

Hidayatullah was a jurist serving the Constitution and dealing with it as an operating manual for the nation. He was not a high priest mindlessly performing rituals. Hidayatullah declined the premature assent, and his mandarins had to correct their mistake, averting a jurisprudential crisis.

Hidayatullah is dead. The political class now is not unduly worried about the nuances of the Constitution. And the high priests do not care. I am only reminded of Robert Bork's statement— the question nowadays is not how to read the Constitution, but whether to read it. We live in an era of "constitutional morality" and sealed cover jurisprudence. God save Indian democracy.

Justice J Chelameswar is a Former Judge of Supreme Court of India

The article was first published on The New Indian Express. LiveLaw is republishing it with Author's permission.