The Tale Of Two Judgements And Two Nations

Francis Fukuyama in his epic work ‘The End of History and the Last Man’ wrote:

“There are numerous examples of countries which do not meet a number of so-called cultural “preconditions” for democracy…… India, which is neither rich and highly industrialised (although certain sectors of its economy are technologically well advanced), not nationally integrated, nor Protestant, and which nonetheless has been able to sustain an effective working democracy since independence in 1947.”

What has baffled the Western audience is often taken for granted here.

The Constitution Day, celebrated on 26^th November, is certainly the day we should be reflecting on why our Constitution has endured so many highs and lows. We need to understand why India is the longest running post-colonial democracy. Will our Constitution and the freedoms it guarantees survive the relentless assault from those who wield executive and legislative power? Two judgments and the course the history of two nations would unravel why our Constitution still stands and also why it requires more than lip service to keep its foundations strong.

DOSSO JUDGMENT

In October 1958, Martial Law was imposed in Pakistan. The two-year-old Constitution of 1956 was abrogated. General Ayub Khan of Pakistan took charge of the Martial Law administration. He addressed a bewildered nation with his infamous speech, ‘We must understand that democracy cannot work in a hot climate. To have democracy, we must have a cold climate like Britain.’

The constitutional challenge to the military regime came through a strange path. A murder took place in Lora Lai district of Balochistan. A suspect named Dosso was charged with murder by the Council Of Elders (Loya Jirga), who acted under Frontier Crimes Regulation (FCR), 1901.

The critical question that found its way before the Supreme Court of Pakistan was whether the Constitution of 1956 would prevail over the FCR. The question was so loaded that if the Constitution of 1956 was to prevail, the imposition of Martial Law would be illegal.

The Supreme Court of Pakistan in Dosso invoked Austrian jurist Hans Kelsen’s theory of Grundnorm. The court expounded the theory of Grundnorm to mean that the basic norm, rule and order underlying the legal system shifts when a coup d’état or a revolution takes place and which creates a new legal order. Thus, previous Constitutions will be obliterated under the new Grundnorm.

The verdict gave constitutional legitimacy to the martial law administration and obliterated the Constitution of 1956 of nascent Pakistan. The judgment gained such notoriety, that it was cited by despots across the globe to legitimise usurpation of power.

The overruling of Dosso 15 years later in Asma Jilani’s case did not matter. The power shifted from a written Constitution to the Army. At last count, Pakistan suffered three coups, one indirect military intervention and four failed coups.

KESHAVANADA BHARATI

The Supreme Court of India’s verdicts in the Bank Nationalization case and the Privy Purse case were perceived as an assault on the will of the people to bring about a just and egalitarian society.

Indira Gandhi dissolved Parliament in December 1971. She took the constitutional issues raging in the courts to the electorate itself and came back with a huge mandate.

Amendments were made to the Constitution, nullifying what was perceived as the court’s overzealous protection of the right to property.

These Constitutional amendments came to be challenged in the Supreme Court in the case of Kesavananda Bharati v. State of Kerala. The court upheld Parliament’s power to amend any provision of the Constitution, including the fundamental rights.

This judgment overruled the much maligned Golaknath verdict and freed land reform legislations to achieve its objectives. But the constitutional amendments posed a serious threat - of constitutional imbalance which could subsume democracy itself. The court, alert to possible abuse, ruled that “the power to amend does not include the power to alter the basic structure or framework of the Constitution”.

It is nowhere written in the Constitution that there exists a ‘basic structure’.

It was a spectacular judicial innovation. The very same criticisms, which are currently deployed against the NJAC verdict, were then railed against the Kesavanada verdict. Incidentally, HM Seervai, it’s fiercest critic, changed his opinion after the Emergency.

The judgment of the Supreme Court at that critical juncture of India’s history preserved democracy in India for all times to come and uncompromisingly thwarted totalitarian impulses.

LESSONS FROM TURKEY

The dangers of executive interference in matters of the judiciary are not far in distance or in time. Within two weeks of the military coup inTurkey in July this year, 2,745 Judges were sacked. To the discerning, the message was clear – the rule of law was dead. Break the judiciary and you can replace democracy with unbridled despotism. At the last count, 70,756 people, including academics, journalists, leaders of opposition, 800 judges and two judges of the Constitutional Court, are currently incarcerating in Turkey’s prisons.

NJAC VERDICT

There are constant and repeated calls for a predominant role for the executive in judicial appointments. The nuances of the NJAC verdict are eluding many eminent voices in the judiciary and the bar. There appears a collective amnesia about the recorded history of punishments meted to the higher judiciary by supersession, transfers, the draconian 42nd amendment and many others and most of all the contemporary history all around.

CONSTITUTION DAY RHETORIC

The Constitution Day gave the opportunity to senior judges to respond to the criticisms. Chief Justice T.S. Thakur endorsed the NJAC verdict by asserting primacy of the judiciary to guarantee independence.

Law Minister Ravi Shankar Prasad’s criticism on the failure of the Supreme Court to protect the Right to Life in the ADM Jabalpur case rings hollow.

One swallow does not make a summer. The rhetoric overlooks the large number of the citizens approaching the various high courts everyday for infractions of their fundamental rights by the government.

For one ADM Jabalpur in the lifetime of the Supreme Court, there are thousands of Kanhaiyas, Mrinalini Sarabhais, Kobad Gandhis, activists, journalists and scores of ordinary Indians whose rights to life and liberty are protected by the high courts and the Supreme Court day in day out. Any high court’s board on any given day will reveal the number of habeas corpus petitions tackled every day.

Justice Khehar’s assertion in response to the Law Minister that upholding "constitutional ethos and its principles” alone is the “Laxman Rekha” assumes great significance.

This debate must necessarily be judged through the sieve of Constitutional experience and its ominous portends. Looked from this perspective, one cannot demur that the appointment of judges is intrinsically linked to the very continuance of democracy itself.

Nobody doubts the necessity for improvements of the collegium system. But it cannot be ignored that the central theme of the NJAC judgment of keeping the executive out of the selection process is an essential safeguard. The correctness of the Kesavanada decision was subject to intense criticism in its time, but later, as events unfolded, it came to be universally accepted. Likewise, the constitutional prudence secured in the NJAC judgment; its role in preserving and sustaining democracy and freedom, will in course of time be understood by its most ardent critics.

Santosh Paul is an Advocate practising in the Supreme Court of India.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.