Will Of The People; India A Constitutional Democracy Not A Majoritarian Democracy

It is perhaps best if we understand that we are a Constitutional democracy and not, as the powers that be would like us to believe, a majoritarian democracy. It is the Constitution that is supreme and not the politically expedient will of elected representatives of the day.

The Constitution gives the broad framework - flexible as it may be - within which our nation must navigate. Even the Constitution can be amended within this framework. However, the ‘basic structure’ is the lodestar that gives the direction towards which we must continually steer. This basic structure is not some doctrine evolved for the first time by the Supreme Court in the Keshavananda Bharti case, but is the philosophy already enshrined in our Constitution that emerged after much churning of the turbulent seas of the nineteen seventees, culminating in the 68 days of debates in the Supreme Court by the finest legal minds. Not only is the logic of discerning inherent limitations in a written Constitution powerfully expounded by the judgement, but the wisdom of the philosophy has protected our constitutional democracy itself for the last five decades and, hopefully, for times to come. The power accorded to Parliament to amend any “provision” of the Constitution can never encompass the power to destroy the entire fabric of that very Constitution. It necessarily follows that the power to amend can never be utilized to destroy, for example, democracy itself, which is a basic feature of the Constitution, even if backed by the requisite Parliamentary majority.

The power of constitutional courts to strike down parliamentary law can be traced back to the historic case of Marbury vs Madison in 1803. This judgement recognised the Supreme Court of the US as the final expositor of the Constitution of the United States. By the very nature of that pivotal role, it had the power to determine the limits of congressional law and hence necessarily, the power to declare the law as being void or beyond the powers granted to the legislature by the Constitution.

In the words of Chief Justice Marshall “Because the Constitution is a superior paramount law, unchangeable by ordinary means, . . . a legislative act contrary to the constitution is not law.” Our founding fathers (and mothers), being fully cognisant of this well-established and sublime power of judicial review of Parliamentary law, made it explicit that a law in violation of fundamental rights shall be “void”[i]. To say that the exercise of this power negates the will of the people is to overlook the fact that we are ultimately governed by the will of the people as expressed in the Constitution - which includes its basic structure.

The NJAC was struck down as it made inroads into the independence of the judiciary, and protection of this independence is indeed fundamental to democracy. Repeated public statements by elected representatives negating the power of the Supreme Court to judicially review Constitutional amendments, is itself subversive of the rule of law.

The power of judicial review is inalienable to democracy and to rule of law itself. It is for this reason that the power of judicial review and the independence of judiciary have been held to be part of basic structure of the Constitution. Without the power of judicial review by a fiercely independent judiciary, democracy itself will be a mere writing on water, at the mercy of a powerful state.

If the right to move the Supreme Court under Article 32 to enforce fundamental rights is “the very soul of the Constitution” in Ambedkar’s words, this soul cannot be rendered toothless by denying the power to strike down legislative action that violates those rights. In the words of Justice Ravindran “Unlike the British Parliament, the Indian Parliament is not sovereign. It is the Constitution which is supreme and sovereign and Parliament will have to act within the limitations imposed by the Constitution”[ii]

In Keshav Singh’s case^[iii] a Bench of seven Judges observed:

“In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of parliamentary sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queen’s dominions. On the other hand, the essential characteristic of federalism is ‘the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other. The supremacy of the Constitution is fundamental to the existence of a federal State …. This supremacy of the Constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. …”

Much before the current cathartic sentiment against all things colonial, our founding fathers (and mothers) eschewed the colonial legacy of Parliamentary supremacy in favour of Constitutional supremacy. This was achieved by adopting a written constitution and a federal polity where the powers of all organs of the State are circumscribed. It is best if this colonial phantom is not resurrected again.

The doctrine of basic structure – a necessary fallout of Constitutional supremacy - has provided stability to our polity for the past fifty years and prevented majoritarian governments from striking at its foundations. It is the sole pillar that stands between a complete annihilation of the present Constitution by a future incredibly popular government and the Rule of Law, or indeed Democracy itself.

The author is a Senior Advocate of the Supreme Court. Views are personal

[i] Article 13 of the Constitution