The Supreme Court versus the Constitution: A Challenge to Federalism 0761934448, 0761934456, 2005021700, 8178295873, 8178295881

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THE SUPREME COURT VERSUS THE

CONSTITUTION

THE SUPREME COURT VERSUS THE

CONSTITUTION

A Challenge to Federalism

Conceived and edited by

Pran Chopra

SAGE Publications New Delhi • Thousand Oaks • London

Copyright © Pran Chopra, 2006 All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system, without permission in writing from the publisher. First published in 2006 by Sage Publications India Pvt Ltd B-42, Panchsheel Enclave New Delhi 110 017 www.indiasage.com Sage Publications Inc 2455 Teller Road Thousand Oaks, California 91320

Sage Publications Ltd 1 Oliver’s Yard, 55 City Road London EC1Y 1SP

Published by Tejeshwar Singh for Sage Publications India Pvt Ltd, phototypeset in 10.5/12.5 Charter BT at Excellent Laser Typesetters, New Delhi, and printed at Chaman Enterprises, New Delhi. Library of Congress Cataloging-in-Publication Data India and emerging Asia / editor, R.R. Sharma. p. cm. Includes bibliographical references and index. 1. Civil society—Asia. 2. Asia—Social policy. 3. Asia—Economic policy. 4. Asia—Politics and government. 5. National security—Asia. 6. Asia—Foreign relations—India. 7. India—Foreign relations—Asia. I. Sharma, Ram Rattan. JQ36.I53

ISBN:

303.48'25—dc22

0–7619–3444–8 (Hb) 0–7619–3445–6 (Pb)

2005

2005021700

81–7829–587–3 (India–Hb) 81–7829–588–1 (India–Pb)

Sage Production Team: Payal Dhar, Rrishi Raote, Girish Sharma and Santosh Rawat

To the years spent in the press galleries of the Constituent Assembly and Parliament, watching independent India taking shape before and after 15 August 1947. To the days when Parliament believed in itself and did not let anyone steal its clothes; when judges were focused on justice, and power mattered to few. To the hope that the harm done to that legacy in more recent times has not become irreparable yet.

CONTENTS Foreword by Somnath Chatterjee

9

Preface

16

Acknowledgements

18

What Our Past Has Taught Us I.K. Gujral

19

The Supreme Court versus the Constitution Pran Chopra

22

PART I PERSPECTIVES 01. Basic Structure: After 30 Years N.R. Madhava Menon

59

02. The Constitution, Parliament and the Judiciary P.P. Rao

70

03. The ‘Doctrine’ versus ‘Majoritarianism’ Fali Nariman

79

04. The Court, the Constitution and the People Salman Khurshid

95

05. The ‘Doctrine’ versus the Sovereignty of the People Subhash Kashyap

99

06. The Constitution and ‘Due Process’ S.K. Dholakia

108

07. ‘Due Process’ or ‘Procedure Established by Law’? Ajay K. Mehra

115

08. Is the ‘Doctrine’ the Obstacle? P.K. Dave

131

09. Anomalies of the ‘Doctrine’ R.K.P. Shankardass

137

10. Federalism Revisited Justice A.M. Ahmadi

147

11. India’s Judiciary: The Promise of Uncertainty Pratap Bhanu Mehta

155

12. A ‘Loose’ Doctrine K.C. Pant

178

13. A Judicial Commission? Ramaswamy R. Iyer

188

14. The Supreme Court, Parliament and the Constitution Ajit Mozoomdar

192

PART II THE IDEAL REMEDY: A VALEDICTION Soli Sorabjee

199

PART III REVIEW AND RESPONSE Pran Chopra

211

An Overview Interventions Looking Back Some Basic Issues New Dynamics of Federalism Looking Ahead: Some Recommendations

213 217 232 239 250 275

About the Editor List of Contributors and Participants

285 286

FOREWORD Somnath Chatterjee

D

emocratic governance over the centuries has emerged as the most successful political experiment in the history of human civilization. Today, we are witness to democracy being accepted as the preferred system of polity in a majority of countries around the world. Democracy encompasses in its fold the dignified existence of all human beings, advocating liberty, equality and justice as prerequisites to enable every human being to live and progress with self-respect and dignity. The cardinal principle of democracy is that power vests in as well as emanates from the people; as such, accountability to the people in its entirety holds the key to the success and sustenance of democracy in its varied manifestations. The classical tenets of democracy provide for the distribution of power and checks and balances among the organs of the state, working as a safety valve, and ensuring that power does not assume sweeping and unregulated proportions in one hand, much against the ultimate purpose of good governance and development. Democracy, in its onward march, has attuned itself to the native realities and emerging situations in individual countries. After India attained freedom, the biggest challenge before the founding fathers was to evolve a system of governance that would best serve the nation—with diverse languages, culture, religion and stages of development—coming out of foreign subjugation after centuries, in consonance with traditions and values. The visionaries who were entrusted with the drafting of the Constitution of free India

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SOMNATH CHATTERJEE

crafted a unique scheme of governance in which parliamentary democracy was cemented as the cornerstone of our constitutional edifice in preference to the presidential system. They also amalgamated the principle of separation of powers with the doctrine of parliamentary sovereignty in such a manner that we have the benefit of both, but without the rigidity of the two systems. The obvious consideration before the Constituent Assembly was to preserve and protect the supremacy of the sovereign will of the people in the governance structure. It is this very postulate that made the Constitution the supreme law of the land, subjecting all organs of state to its overriding authority. Each organ of state— the legislature, executive and judiciary—is the creation of the Constitution and derives its powers from the Constitution. Their powers, jurisdiction, responsibilities and their relationship with one another have been clearly and specifically laid down in the relevant provisions of the Constitution. The centrality of the will of the people finds its best expression in the Preamble itself, which also is the very source of all institutions of governance. The words, ‘We, the People of India’ and ‘do hereby Adopt, Enact and Give to Ourselves this Constitution’ recognize the sovereignty of the people and their primacy in our constitutional system. It is in exercise of this sovereign power that we, the people, have given ‘this Constitution to ourselves’, making India a sovereign, socialist, secular and democratic republic. And, through the provisions of the Constitution, we have enumerated the powers and responsibilities of the organs of the state to be the facilitators of national weal. Each organ of the state—the judiciary, legislature and executive—is required to function in conformity with it. The relationship of the organs with one another has been clearly demarcated in purpose, intent and areas of activities, leaving hardly any scope for doubt or confusion. If there is any doubt, there is always the spirit of the Constitution, which clearly delineates harmonious relations among the various organs. That being so, it is always of the utmost importance that all organs of state work in tandem and do not encroach on each other’s area of jurisdiction. If any organ oversteps the constitutionally assigned limits, or even displays a trend towards that, each one of them suffers, and in such a case the ultimate casualty is

Foreword

11

the constitutional balance and thereby national interest. By and large, the scheme of governance as constitutionally ordained has worked well in our country; yet there have been occasional disputes centring around different issues and subjects, which have been perceived to have created doubts about the capacity of our constitutional set-up to deal with such situations satisfactorily. Even in dealing with such instances, the centrality of the Constitution should prevail, so that the efficacy of our constitutional scheme is maintained under all circumstances. As the supreme representative and law-making body, the legislature has been accorded a pre-eminent position in our constitutional and political set-up. The power to make laws, its control over the nation’s purse, the executive being made accountable to the popular House, its role in the election and impeachment of the head of state as well as in the removal of incumbents of high constitutional offices, its constituent powers, and its powers during an emergency testify to such pre-eminence. Yet even the legislature has to function within the confines laid down by the Constitution. All laws, whether Union, state or delegated, are subject to the doctrine of ultra vires and judicial review. It is thus that the framers of our Constitution took utmost care to provide for an independent and impartial judiciary as an interpreter of the Constitution and the custodian of the rights of the citizens. However, they envisioned that the courts too have the mandate only to interpret the laws and not enter into a discussion as to what the law should be nor to lay down general norms of behaviour for the government and the people to be considered binding on all as the law of the land. The scope of judicial review, thus, is confined to seeing whether the impugned legislation falls within the competence of the legislature or is consistent with the Fundamental Rights guaranteed by the Constitution and its other mandatory provisions. Notwithstanding this ideal constitutional arrangement, certain issues have arisen at times over the last five decades that seem to detract from the usual position of complementary relationship between the legislature, executive and judiciary. Differences in perceptions on issues are no doubt likely to occur in the context of dynamic institutions, especially in a thriving democracy like ours. Some such issues on which differences have cropped up

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SOMNATH CHATTERJEE

relate to the powers of the courts to review the laws, including Constitutional Amendments, parliamentary privileges and issues relating to the operation of the anti-defection law and exercise of powers which are the domain of the executive. The debate on ‘judicial activism’ has gained ground in recent years, eliciting both admiration and criticism from various quarters. Critics feel that the judiciary is transgressing its prescribed jurisdiction and entering the domain of the legislature and executive. Some others are of the view that if the other organs of state are found to have fallen short in the discharge of their constitutional obligations, the judiciary is well within its rights to take necessary corrective action. What is to be borne in mind is that constitutional parameters have to be strictly adhered to and respected by all organs of the state. The Constitution does not contemplate a super-organ nor confers overriding authority on any organ. No organ has any authority to superintend over the exercise of powers and functions of another, unless the Constitution strictly so permits. Otherwise the constitutional balance will be greatly disturbed. The basic foundation of our Constitution is the accountability of the state to the people, who are the real masters. The accountability of the executive to the people at large is enforced through their representatives in the House of the People. The legislatures also have the obligation not to exceed the jurisdictional limits provided in our organic law. The Constitution and its Preamble are the guiding lights so far as the judiciary is concerned, but there is no scope of enforcing its accountability, except judicial conscience and rectitude. If any organ of the state arrogates to itself any power, having a sanction only in terrorem, which under the constitutional scheme belongs to any other organ, it will cause a serious imbalance in our constitutional set-up. The matter of perceived difference between the legislature and the judiciary has come about in the context of the power of Parliament to amend the Constitution. When the Supreme Court, in the Golak Nath case, reversed its own earlier decisions recognizing the power of Parliament to amend all parts of the Constitution, Parliament passed the 21st Amendment in 1971 providing expressly for such power to amend any part of the Constitution, including provisions relating to Fundamental Rights. In 1973, in

Foreword

13

the Keshavananda Bharati case, the apex court held that Parliament does have the power to amend any part of the Constitution, but it cannot be so exercised as to alter or destroy the ‘basic structure’ of the Constitution, a theory which it reaffirmed in the Indira Nehru Gandhi vs Raj Narain case. This concept of basic structure has since been developed further in the Minerva Mills and various other cases. These basic features are not finite and have been spelt out in different rulings, with the Supreme Court itself stressing that ‘the claim of any particular feature of the Constitution to be a basic feature would be determined by the Court in each case that comes before it’. Interestingly, the supremacy of the Constitution, parliamentary democracy, the principle of separation of powers, the independence of the judiciary and the limited amending powers of Parliament have been spelt out at different times as among the basic features. What is important in this context is that all organs of state have to look judiciously at different perceptions of specific issues and ensure that the constitutional mandate is not violated. They also have to make efforts to strengthen the linkages between the two organs since if either of the organs got weakened, the stability of the entire edifice of our democratic structure would be in jeopardy. As per the constitutional provisions, Parliament and state legislatures have duly showed the highest respect and regard for the judicial body. The Rules of Procedure ensure that the image of the judiciary is not tarnished in any way by any action of our legislative bodies. In fact, there has always been a consensus among the community of parliamentarians to strike a balance among the various organs of state so as to enhance the prestige and dignity of the institutions of our polity. The Conferences of Presiding Officers of Legislative Bodies in India have deliberated on the legislature–judiciary relations time and again, and stressed the imperative of cooperative relations between the two. It is in this spirit that a Committee of Presiding Officers of Legislative Bodies in India was set up in 1993 under the chairmanship of Hashim Abdul Hali, Speaker of the West Bengal Legislative Assembly, to examine and report on ‘Measures to Promote Harmonious Relations between the Legislature and the Judiciary’. Having carefully considered all aspects, the Committee

14

SOMNATH CHATTERJEE

emphasized the need to strengthen relations between the legislature and the judiciary. It was felt that the Constitution has prescribed specific duties and responsibilities for the legislature and the judiciary, and their roles are intended to be complementary to each other. The committee also stressed that it would be in the best interests of democracy if both functioned with mutual trust and respect, each recognizing the independence, dignity and jurisdiction of the other. What is important to bear in mind is that all the three institutions of state—legislature, executive and judiciary—have their own specified place in sustaining and strengthening our democratic system. They owe equal responsibility towards achieving the objectives of the Constitution for the benefit of the entire society. While occasional differences among them are only to be expected in the milieu in which they operate, they cannot afford to let aberrations undermine the constitutional edifice. All organs of the state need to work with respect for each other and in closer and greater cooperation to create a conducive environment for the actualization of the full potential of our people. They cannot afford to fail the Constitution and the nation, or else they will be found guilty at the bar of history. The relationship among the organs of state has always been a matter of intense debate among the legal and parliamentary fraternity, the academia and the media. Varied views have been propounded by the intelligentsia on this subject from different fora, particularly with regard to the scope and ambit of what is known as public interest litigation (PIL), which has been perceived by many to have blurred the parameters of and encroached on the jurisdictions of the executive and legislature. Much work has been published on the theme, delineating the constitutional, legal and parliamentary concerns. The latest in the line of authoritative publications is the one by the well-known writer and journalist Pran Chopra. The work is the result of a seminar that Chopra convened on the relationship between Parliament and the judiciary in sustaining the centrality of the Constitution in an endeavour to discuss the various constitutional and legal aspects of the matter. Legal luminaries and constitutional experts have shared their perceptions on the theme through their learned presentations, which find place in the book. They bring out their varied

Foreword

15

viewpoints through reasoned arguments and seasoned expostulations. Several participants have rightly highlighted that the constitutional mandate for harmonious relations among the two most crucial pillars of our democracy, namely, the legislature and the judiciary, should be strengthened for effectively safeguarding the future of our nation and its people. Pran Chopra deserves our hearty compliments for the good work he has done in bringing out this useful volume. I am sure, the book will help facilitate a greater insight into and better understanding of the issues involved. I commend this publication to all interested readers.

New Delhi

PREFACE

T

his book presents a many-sided view of the future of India’s federal and parliamentary democracy, as seen by some of the country’s best-known authorities in this field. The core of their concern is the present status and future prospects of the development of federalism and constitutionalism in India’s polity in the face of the gap between the position prescribed in the Constitution and the stand taken by the Supreme Court regarding the power to amend the Constitution. After an intense discussion between nearly 50 of them in a twoday seminar, they came to the nearly unanimous conclusion, with minor variations, that India has been made possible by the dynamics of federalism; that federalism can remain viable only to the extent that we remain faithful to the Constitution; and that whoever or whatever undercuts the Constitution undermines India, however lofty the reasons given for doing so. The reader will find that some ideas and arguments have been repeated in this book at different places, though in different forms and contexts. The reason is that I have presented the contents as they grew, not in an all-embracing retrospect. The dynamics of the subject have been better captured that way. By mid-summer of 2004 a few articles by me in newspapers and periodicals in the preceding months had grown into a 30page theme paper for a possible seminar. The idea of convening one was still only an intention, but it was clear to me that if the seminar was to do justice to the significant and controversial subject before me, then some critical propositions and issues must be circulated in advance for the consideration of the participants.

Preface

17

The crux of the issues I invited them consider was that: Indian federalism faces the risk of a constitutional impasse between the Supreme Court and the constituent power of Parliament. In the past such conflicts could be resolved by referring to the Constitution. But this may not always be possible in future in view of a challenge the Supreme Court has posted to the Constitution itself. The theme paper was sent to a score of well-known authorities on the subject and they were invited to share their thoughts on it. About a dozen of them had contributed papers by early September, and what was only an intended seminar a few weeks earlier became a stimulating certainty. The count of papers went up to 16 by 19 September 2004, the first day of the seminar. The papers appear on the pages following the theme paper, which poses the problem, ‘The Supreme Court vs the Constitution in the context of India’s federal democracy’. In presenting their papers at the seminar a number of authors added new dimensions in the light of the rapid changes taking place in the context. Some of these dimensions, and some responses to them, appear as ‘Points From the Discussion on Day 1, on Day 2, and On Looking Back’. To leave more time for the expanded debate, I decided to hold back till later any further response needed from me as convener and not already covered by my theme paper. The additional response now appears under the heading ‘Some Basic Issues’. What comes next in the book is in fact a recurring theme that underlies the whole debate: in what manner and direction have our federalism and parliamentary democracy evolved since India became independent, how have they been affected by more recent events, what changes would enable them to respond better to coming events, and how the changes should be made and by which limb of the polity, particularly whether by Parliament ‘meeting in the exercise of its constituent power’ or by the Supreme Court under ‘the doctrine of basic features’. At the end follow a few specific recommendations by the seminar. PRAN CHOPRA

ACKNOWLEDGEMENTS

M

y grateful thanks to the Fellowship Committee of the Lok Sabha and to its Chairman, Dr L.M. Singhvi, for inviting me to write a monograph which grew into this book. Thanks also to the Institute of Social Sciences, New Delhi, and its Director, Dr George Mathew, for financial, administrative and secretarial help in holding the seminar, which formed an important part of the study, and to the many distinguished contributors who wrote very valuable papers at very short notice.

WHAT OUR PAST HAS TAUGHT US I.K. Gujral

A

s we gather here to discuss the respective roles of Parliament and the Supreme Court in guarding the Constitution, my mind goes back to some incidents of the past, particularly when as a student in Lahore I heard for the first time Jawaharlal Nehru saying that the Constitution of a free India would be drafted by an elected Constituent Assembly. We in the audience had assumed that a constitution would be bequeathed to us by the British rulers as they handed over our sovereignty. We had also witnessed nearly every session of the Congress spelling various contours of free India’s constitution, hardly leaving any space for a Constituent Assembly that he was now referring to. We were also seeing Nehru and other leaders of the freedom struggle educating the people regarding freedom, democracy and the supremacy of Parliament. All the same, on that occasion he talked about the ‘Constituent Assembly’. Till then the intelligentsia had assumed that soon after freedom some scholars and legal luminaries would put their heads together and draft a document for the governance of the new nation-state. But the visionary Nehru was telling us at that students’ meeting that the constitution of a free India would not be an academic paper but an elected assembly would democratically write it, keeping in mind the aspirations of the people and the promises held out to them. He pointed out that neither the Government of India Act of 1935 nor the discussions in the two Round Table Conferences or the Simon Commission Report could serve the purpose.

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I.K. GUJRAL

I also recall that when my father became a member of the Pakistan Constituent Assembly (our family was still living in what was to become Pakistan), he heard no one in the Assembly speaking about what Pakistan’s constitution was to be. As a result, Pakistan neither got a credible constitution nor genuine democracy, while the Constituent Assembly of India deliberated for nearly three years to give the nation a comprehensive one which enables the people themselves to take charge of their destiny. The paradigms of our Constitution are unique since it embodies the nation’s aspirations regarding their Fundamental Rights and the relations between various institutions of the state. Some years later, when the king of Nepal conceded the right of the Nepalese people to draft their constitution, the Prime Minister of Nepal, Mr Bhattarai, told me (I was a minister in the Government of India then) that he would like to draft it with the help of some legal luminaries from India and elsewhere. I told him that an independent and democratic country’s constitution is not an academic treatise but a sacrosanct guideline that embodies the people’s aspirations, as India’s Constitution had done. Unfortunately, he did not appreciate my point of view. The results are now there for us and the people of Nepal to see. Our Constitution is a living document. It responds to debates and eloquent arguments not only in legislatures but also in our society as a whole. Pran Chopra’s paper succinctly points out some pertinent issues that confront the nation, particularly regarding ‘basic features’. I recall the late Nath Pai’s passionate pleas at a time when the issues raised by the Golak Nath and Keshavananda Bharati cases were in focus, such as the powers of Parliament and of the Supreme Court regarding amendments to the Constitution. It may be true that our legislatures have lost much of their sheen and people no longer extend the traditional esteem to them. All the same, the nation cannot let the judiciary encroach on the areas of Parliament. I am glad that today’s agenda points out the difficulties that would arise if such a thing happened. While discussing the failings and the limitations of the legislatures, we may also keep in mind that all is not well in the sphere of the judiciary either. We have seen its limitations too, and the saddening conduct of some honourable judges during the Emergency. I recall the visit of two honourable chief justices to Moscow

What Our Past Has Taught Us

21

during my tenure there, and how they defended the misdoings of that era. The Emergency has taught us many things, the most important being the record of the judiciary. I am sure that this seminar will examine the shortfalls of various institutions of democracy, keeping in mind that ‘we the people’ are supreme. I am glad that Pran Chopra has raised some thought-provoking issues that need to be deliberated upon.

THE SUPREME COURT THE CONSTITUTION

VERSUS

Pran Chopra

AN INTRODUCTION

IN

TEN QUESTIONS

A

t first sight this paper may appear to be focused on the relatively narrow issue of the conflict between the positions of the Supreme Court and the Constitution regarding the power to amend the latter. But some pivotal issues hang by that peg. They in turn raise some far-reaching questions regarding the future of our democratic polity. This paper is an attempt to draw attention to some of these questions. For example, to the following: 01. Given that India has a written Constitution, can the Supreme Court so interpret it as to bring into it what the Constituent Assembly had rejected ‘after a great deal of deliberation’? 02. Must interpretations of the Constitution by the Supreme Court remain within the generally accepted principles of such interpretation? 03. Can the Supreme Court bypass the role given by the Constitution to the federating states in the matter of amending the Constitution? 04. Is the Supreme Court’s power to strike down a constitutional amendment drawn only from what is written in the Constitution or can it be drawn from other sources too?

The Supreme Court versus the Constitution

23

05. Can a law duly passed by Parliament be struck down by the Supreme Court for inconsistency with what the Court sees as desirable standards of reasonableness and justice? 06. Is it the obligation of Parliament or of the Supreme Court to ensure that Indian laws and the Constitution conform to such standards as public opinion in India desires, and who is to determine, by what means, what the Indian public desires? 07. By what means is a judge to deliver justice if unjust laws are delivered by a ‘majoritarian’ legislature? 08. Who is to determine, and how, where majority rule ends and ‘majoritarianism’ begins? 09. Has its conduct in recent years deprived Parliament of its democratic role in reflecting and guiding public opinion? 10. If it has, what is to inherit and perform this role, and can it do so by democratic means?

THE CONSTITUTIONAL FRAME Of all forms of government, the federal parliamentary form is the most complex. It divides ruling authority among the largest number of stakeholders, dividing it vertically between the federal centre and the federating entities, and horizontally between the legislature and an apex court. It gives the legislature sole authority for making laws, and the court the authority to see that no one steps out of the rules of the game. It makes the government accountable to the legislature for all its acts and on each day of its life. On top of all that, it imposes a constitution that defines the domain of each stakeholder so that none may stray into another’s. Therefore, the larger the number of stakeholders or the greater the diversity among them, the more detailed and long the constitution has to be. Since India is the largest parliamentary system and the most populous and diverse federation, its constitution is one of the longest and most detailed in the world, and probably the most complex. Why did India’s leaders choose this most difficult form? The answer lies in their faith in the values of this system, their confidence that Indians could manage it, and the history of the times.

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PRAN CHOPRA

Independent India is a product of the most massive freedom movement the world has seen. Hence, it could not but be a mass democracy, based on universal adult franchise; nor anything but parliamentary because only a political apex consisting of some hundreds of members, not a single person drawn from one or another of the innumerable pieces of the Indian mosaic, can be a faithful reflection of the hundreds of millions of very diverse Indians; and it could not be anything but federal if the numerous political entities that existed before independence were to become active and equal partners in the same power system across the whole country. The Indian Constitution has done several things most painstakingly. First, it has defined the functions and powers of each component of the federal government and at each layer, that is, at the level of the federal centre, the federating states, and since 1993, at the local level also, whether in rural or urban India. Second, it has set up mechanisms for resolving all kinds of disputes that could be foreseen. Third, it has laid down mechanisms for dealing with unforeseen disputes. Fourth, it has prescribed very clear processes by which, and the limits within which, the Constitution can be amended in the light of the country’s experience and evolving needs and values. Fifth, in prescribing the amending processes, it has reaffirmed the federal imperative. Sixth, it has empowered the most authoritative interpreter of the Constitution, namely, the Supreme Court, to resolve, in the light of the Constitution, any dispute between components of the federal system, or between a component and a citizen, regarding the rights and duties of each. The intricacy of such a complex system makes it all the more necessary that each component do its own job well so that the whole system may work better. If one part thinks another is failing in its job and so steps into the latter’s domain, it can trigger a collapse of the whole machine. This makes it all the more regrettable that the most intricate systemic problem, which was the least foreseen and therefore also the least provided against, has arisen at the level of the Supreme Court itself. It was the least foreseen because it is so unwarranted by the text. The Court has three main areas of work. If any issue before it relates to any executive action, the Court judges the action in the

The Supreme Court versus the Constitution

25

light of the laws, the Constitution and precedents, and corrects it as needed. Second, if the issue relates to the meaning of a law made by the legislature, the Court judges the law in the light of other laws, the Constitution and judicial precedents. Third, if the issue relates to the constitutionality of a constitutional amendment made by Parliament, the Court measures it against what the text of the Constitution says or what it can be interpreted to have said, subject to the usual principles of interpretation, regarding the amending powers of Parliament meeting in its constituent mode, which is the only authority to which the Constitution has given the power to amend the Constitution. This makes the Constitution the founding document and preserver of the federal system of India. No document, institution or authority is superior to it. Rightly then, the best known authority on the Constitution and best known as its author, Dr Ambedkar, gave a much needed early warning against what may befall the country if the Constitution were violated or bypassed by anyone. Speaking in the Constituent Assembly on 17 September 1949, he said: In fact the purpose of the Constitution is not merely to create the organs of the state but to limit their authority, because if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression. The legislature would be free to make any law, the executive free to take any decision, and the Supreme Court free to give any interpretation of the law. It would be result in utter chaos.1 These are among the wisest words of a very wise man. But read in the context of some recent events, they also have an ironic twist in them. The Supreme Court has used its powers very wisely to keep the legislature from making ‘any’ law and the executive from taking ‘any’ decision. But it has not restrained itself from giving ‘any interpretation’. The emerging consequence is that the two main lieutenants of the Constitution, Parliament and Supreme Court, are fighting each other for the possession of its body and soul. This irony is the theme of the present writing.

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PRAN CHOPRA

TWO ROOTS

OF THE

IRONY

Federations are either formed when some states decide to come together, for whatever reason, or when the components of a state opt for decentralization, whether for more efficient governance or greater self-governance for the components. Either way a federation is founded on some general or specific terms, which then go into its constitution. It also prescribes whether, when, how, how far and by whom the terms may be amended. It also provides some form of an apex court for detecting, preventing or annulling any departure from the constitution by any component of the federation. True to its commitment to the federal imperative, the Indian Constitution has added the important provision that any amendment that may affect the rights given by the Constitution to the federated states can be made only with the consent of the majority of the constituents, obtained by methods and to the extent prescribed by the Constitution. But considering the importance and clarity of the Constitution, two things are ironic. First, that some important aspects of the Constitution, such as, the source of its own authority and the authority of two key constitutional institutions, Parliament and the Supreme Court, have been misunderstood from time to time; and second, that they have been misunderstood at such high levels as Parliament, the President, the Prime Minister and the Supreme Court itself. Some of them have also underestimated the part public opinion can play in making desirable changes in the Constitution or preventing undesirable ones, that is, in acting as the ultimate guardian of the Constitution. But ‘we the people’ had barely completed the act of giving ‘ourselves this Constitution’, which they did on 26 January 1950, when some enthusiastic MPs began to describe the Indian Parliament as ‘sovereign’, which it is not. They were misled by the example of the British institution, which bears the same name. In Britain the Constitution on a given day is what the British Parliament says it is, while in India the meaning of the Constitution on any issue is laid out in documents and precedents that have to be studied afresh in the context of each concerned issue that may be before the Court.

The Supreme Court versus the Constitution

27

On the other hand, President Rajendra Prasad made the contrasting mistake of reading too much into individual lines of the text and overlooking the structure of the Constitution when it came to deciding the source and limits of certain apparently discretionary powers of the President. But a more curious mistake was made by Pandit Nehru on 10 September 1949 in the Constituent Assembly. He said, ‘No Supreme Court and no judiciary will sit in judgment over the sovereign will of Parliament. . . . Ultimately, the whole Constitution is a creature of Parliament.’2 There are two mistakes in this short passage from Nehru. Our Parliament is not sovereign; only the Constitution is. Second, the Constitution is not and never was a creature of Parliament. It was created by the Constituent Assembly, and when the latter was dissolved on completing its work, the Constitution was not entrusted to Parliament as such. It was inherited exclusively by Parliament meeting ‘in exercise of its constituent power’, the term specifically used in the Constitution for such functions of Parliament as may relate to the Constitution (Article 368, clause [1]). But a directly opposite view has been thrown into the ring by the Supreme Court. As the result of perhaps the most convoluted course it has taken in a constitutional matter, the Court in effect came to the position in 1973, in the Keshavananda case, that it has an undefined, undefinable and therefore inexhaustible power to annul any amendment to the Constitution which the Court thinks to be adverse to whatever the Court may, at any time, consider to be a basic feature of the Constitution. The Court has stuck to this novel device ever since, and it has come to be known as ‘the doctrine of basic features’. These two positions, that of the Constitution and that of the ‘doctrine’, can create a direct clash between the Constitution and the Supreme Court at three different levels. First, between the Court and clause (1) of Article 368 of the Constitution; second, between the Court and one part of clause (2) of the same Article; and third, which can subject the President to an untenable constitutional position, between the Court and another part of the same clause. In addition, a very complex controversy has been created over the dividing line between interpretation of the Constitution and the interpolation of a new clause in it or the subtraction of one from it.

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Amendments and the Federal Imperative Article 368 of the Constitution clearly confers well-defined but in effect extensive powers on the constituent mode of Parliament in the matter of making amendments to the Constitution. They can be made only according to a prescribed procedure, and with the prescribed majorities. But the procedure excludes no part of the Constitution from the scope of such amending power. A collision between that power and the ‘doctrine’ can result in a constitutional clash. The scope for the collision is as extensive as the Constitution is on one side and on the other side the undefined and unlimited ‘doctrine’. It can also be a very sharp crisis because of the unusually mandatory language of Article 368 on the one hand and on the other hand the open-ended view the Supreme Court seems to have taken regarding where interpretation of the Constitution ends and interpolation of clauses into it begins. Clause 1 of Article 368 says, ‘Notwithstanding anything in this Constitution, Parliament may, in exercise of its constituent power amend . . . any provision of this Constitution in accordance with the procedure laid down in this Article.’ The language of the Article makes it clear enough that it has been so worded as to put its meaning and purpose beyond any doubt. But its history makes it clearer still. For nearly a quarter of a century this clause did not figure in the Constitution. Its message was embedded in the next clause. But in 1971 the Constitution was amended (by the 24th Amendment) to remove any impression that might have been created by the Golak Nath judgment (1967) that Fundamental Rights could not be amended under Article 368, but only through the convening of a new Constituent Assembly for making a new constitution or by radically changing the present one. The new clause also gives a very wide interpretation to the word amend, ‘by way of addition, variation, or repeal of any provision of this Constitution’. Clause 2 of Article 368 says, ‘An amendment to this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament.’ On the other hand the Supreme Court’s position is that under its ‘doctrine’ it can strike down any amendment that affects any feature of the Constitution the Court may consider to be ‘basic’. From time to time the Court has illustratively listed some features as basic, but

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the list has gone on growing over the years, and the features already listed not only relate directly to a large number of provisions of the Constitution, but can be related to many more indirectly through the Court’s legitimate power of interpretation.3 The Court has not only left the power of interpretation free of any limitations; its ‘doctrine’ in fact rests upon the assumption that there are no limits, for only then can the Court be sure that through the ‘doctrine’ it can strike down any amendment that it might not be able to reach through the gate of ‘vires’, though it has been able to reach many through that gate as well. The history of the formulation of ‘constituent power’ from Shankari Prasad vs Union of India in 1951 to its further clarification and firming up in the 24th Amendment Act of 1971, and later applications of the 24th Amendment Act since 1971, is full of examples of earlier amendments to the Constitution being struck down and various judgments of the Supreme Court being upturned on account of subsequent discovery of grounds of inconsistency with the Constitution. In fact, the Court’s power to strike down an amendment on grounds of its inconsistency with any part of Constitution is inherent in a federal constitution, which, as explained earlier, defines the powers of each stakeholder in the federal structure. The Court can strike down any action or legislative enactment by any government, any constitutional amendment by Parliament, and anything that disturbs that definition. The Court can do so on grounds of inconsistency, and without resort to any such device as the ‘doctrine’ which is not provided in the text of the Constitution or cannot be derived from an ‘interpretation’ of the text within the normal scope of ‘interpretation’. In Keshavananda vs State of Kerala, 1973, in which the ‘doctrine’ acquired its present status, a part of the 25th Amendment Act was invalidated on the grounds that it was inconsistent with the Supreme Court’s power of judicial review. That means even as the ‘doctrine’ was being formulated, the Supreme Court had the power to strike down an amendment on grounds of its inconsistency with the Constitution. (Incidentally, Fundamental Rights were not held to be a limitation on the ‘constituent power’ of Parliament.) But if in spite of this power it already has, the Court has taken the trouble of inventing the ‘doctrine’, it is reasonable to ask why

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it is searching for extra-constitutional weapons against the constitutionally valid power of amendment that Article 368 has given to the constituent role of Parliament. Justice Chandrachud and the noted constitutional expert, scholar and Senior Advocate, Seervai, have given one reason, with which Granville Austin appears to agree. In the Election case Justice Chandrachud rightly argued that, ‘[For] determining whether a particular feature of the Constitution is a part of its basic structure one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country’s governance.’ It is in reasons such as these, or in a misreading of such reasons, that justification is sought by others for having something as handy as a ready-made doctrine which may tell at a glance, as a dictionary may, whether the feature in question is ‘basic’ enough for the Court to throw out an impugned amendment thereof. As quoted by Seervai (in the third edition of The Constitutional Law of India), Justice Chandrachud stressed the immensity of the task that would be involved in determining in advance ‘whether a particular feature of the Constitution is a part of its basic structure’. Seervai himself commented along the same lines and said ‘For, a precise formulation of the basic features of the Constitution . . . would be a task of the greatest difficulty and would add to the uncertainty of interpreting the scope of Article 368’ which sets out the procedure for amending the Constitution. In a letter to the present author (25 March 2004) which is cited here by permission, Granville Austin said, ‘If one accepts the idea of a basic structure doctrine, it should not follow that the Court should define every timber in the structure before cases involving the concept appear before them’. That would eliminate the labour of arguing the matter out in every case on the basis of the text of the Constitution. But while it may be convenient to have such labour saving devices, preservation of the sanctity of the Constitution is too serious a matter for cutting corners on it. Besides, in the light of its specific details, every individual case can tell a different story, as a conscientious judge like Justice Khanna showed in dealing with the same matter, Fundamental Rights, in two different cases (the Keshavananda and Election cases).

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The ‘doctrine’ also allows the Court to insert something into the Constitution through the art of interpolation, sometimes in the name of what is good for the people without anyone having to go through the toil of either finding out whether the people want it, or the greater toil of having to persuade people that they should want it. The consent of a dozen men in black robes and wigs is all that is needed under the ‘doctrine’, which bypasses the constitutional stipulation in Article 368 that an amendment may be initiated only through a Bill introduced in either House (clause 2) and that the Bill may be adopted only through the prescribed majorities. The language of Article 368 becomes even more mandatory when it comes to defining the role of the President in the making of an amendment. Clause 2 of the Article says that when a constitution amendment Bill has been passed by Parliament in compliance with the procedure laid down in Article 368, ‘it shall be presented to the President who shall give his assent to the Bill, and thereupon the Constitution shall stand amended in accordance with the terms of the Bill’. What happens then if, after its adoption by Parliament, the Bill collides with the ‘doctrine’? What survives the collision, the Bill or the ‘doctrine’, and what happens to the assent given to the Bill by the President? Is he left holding his letter of assent which bears his signatures but is a dead letter? The provisos to clause 2 prescribe certain qualifications which the Bill must satisfy before it can be sent to the President for signatures. It is not very clear whether clause 2 leaves any room for the President to satisfy himself that the amendment Bill has met the conditions it is supposed to have met before being presented to him for signatures. But there is no doubt regarding the mandatory nature of the requirement that ‘he shall give his assent’ when the Bill is presented to him and that upon his giving it ‘the Constitution shall stand amended’. This is clear enough from the language of the clause and is further reinforced by the circumstance that while he retains his power to veto other bills, subject to the advice of his cabinet, his assent to a Bill under clause 2 has been made obligatory by the 24th Constitution Amendment Act, the same Act which has stated so explicitly in the new clause 1 of Article 368 that the constituent power of Parliament extends

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to the whole Constitution subject only to the procedure laid down in the Article. But the purpose of the provisos is also to ensure fulfilment of the federal imperative that the powers and privileges which the Constitution may have assured to the federated states at the time of their joining the federation may not be watered down without the consent of at least half of them. That is why the Article requires that the amending Bill must be approved by ‘the legislatures of not less than half the states’. There is further fulfilment of the federal imperative in the requirement that the Bill must be passed not by just a simple majority but by two-thirds majorities by each of the two Houses of Parliament, because these houses are substantially representative of the peoples and legislatures of the federated states, as is indeed the President too, whose assent is also required. The Lok Sabha is not elected by the whole electorate acting as a single constituency or by constituencies that may cut across the boundaries of states. It is elected by the electorate of each state, the number of constituencies in the state depending upon the population of that state. Most of the Rajya Sabha members are elected by the legislative assemblies of the federating states, the number depending upon the size of the assembly concerned. The President is not elected directly by the whole country but by the legislatures of the federated states. Because of this it would be anomalous if a Bill approved by two of the three most important institutions of the Constitution, the President and Parliament, which are also the most federal in their character, were to be struck down by the third, the Supreme Court, which is the least federal; and struck down in the name of a ‘doctrine’ in the making of which no part has been played by the Constitution, the President, Parliament or the states.

When Parliament Sinks Since the dissolution of the Constituent Assembly the constituent role of Parliament has often been confused with the legislative role because the people are much more familiar with the latter. At the same time, the legislative role has been hugely defamed by the disorder which marks—or mars—legislative ‘deliberations’. The combination of these two phenomena has lowered the status

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of the constituent role in public esteem, which is the best fortification that a political institution can have for its authority in a democracy. In contrast, the Supreme Court has grown in public stature despite its numerous ills because the ills are much less in the public eye than the daily rioting in Parliament. The consequence has been that of late the effective legislative and political power of Parliament has been declining, and the judicial power of the Supreme Court has developed political dimensions as well. Some 40 years ago the Supreme Court began to take the ‘supreme’ part of its name more seriously, and thus began what to the outside world looked, understandably, more and more like a turf war between the Court on the one hand and on the other hand first the legislative role of Parliament and then its constituent role as well. The issue took a clear shape in the Keshavananda case though its beginnings go back a bit further. But more recently the Supreme Court has also taken on the Constitution itself. The change is clearly reflected in the opinions that have lately been expressed, among others, by Fali Nariman, Senior Advocate and a legal and constitutional luminary who is no less luminous in his own field today than Nehru was in his day. He has made some of the latest and most authoritative assertions in this context. He also accepts as ‘disarmingly frank’ the comment by Judge Koopmans, a member from the Netherlands on the European Court, that: ‘There is a natural tendency for judges to write a larger role for themselves.’ In the same vein, he quotes Justice Brenan of the Supreme Court of the United States: ‘We on this Court are not final because we are infallible, we are infallible because we are final.’ It is this issue of finality that is at stake in the controversy under discussion here, with the addition of the related question whether a court’s judgment can be as final in a country like India, which has one of the most detailed constitutions in the world, as it is in the United States, which has a constitution of only a few pages. Closer to this context are some of Nariman’s own comments. For example, ‘the majority view in Keshavananda was criticized as an assertion of naked political power’ by the Court ‘in the guise of judicial interpretation. By propounding the basic structure theory, the guardians of the Constitution [it was said] had at one bound become guardians over the Constitution. Constitutional

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adjudicators had assumed the role of constitutional governors.’ Nariman accepts that the criticism ‘has considerable validity’, but adds, ‘It was an auxiliary precaution taken against the possible tide of majoritarian rule’. Till the time of the Keshavananda judgment (by a majority of 7:6) the only Indian government to be accused of majoritarianism had been the one Indira Gandhi formed after she had swept the polls in the wake of nationalisation of banks and abolition of the privy purses of the rulers of the former ‘princely states’. In another issue of The Indian Advocate (Volume XXXI, 2003) Nariman says, ‘If we must have faith in elective bodies—for our democracy to survive—we must also hedge our bets. We must beware of majoritarian governments at all times—whether BJP, Congress or any other—It is this “novel doctrine” that has helped save our liberties.’ (The present writer had earlier described the doctrine as ‘novel’ in the course of a newspaper article that was critical of the doctrine and it had occasioned some correspondence with Nariman.) In a lecture in March 2004 to students of a college (which, incidentally, is named after Dr Ambedkar) Nariman acknowledged yet more frankly that with the Keshavananda judgment the Supreme Court had succeeded ‘in retaining to itself the custody and control of the Constitution, which in the 1970s was in danger of being taken over by Parliament’. Granville Austin, a more detached scholar but perhaps not less dedicated to his convictions, was once asked (by the present writer) whether the Court would be in conflict with the Constitution if, in keeping with the ‘doctrine’, it struck down a constitutional amendment made by Parliament in full compliance with Article 368. He replied, ‘Yes, if one believes in parliamentary supremacy. No, if one does not trust Parliament to refrain from damaging the Constitution.’ His lack of faith in our Parliament is obvious. But not only his, and yet our more vociferous MPs do not realize how deep Parliament sinks when they jump into the ‘well’. However, who is to measure, by what yardstick, whether or when Parliament lost or regained the respect of the people that it used to have, or whether the judicial system still commands, and to what extent, the trust the public reposed in it once and which used to be its most cherished asset? Or are we to proceed on the assumption that India’s parliamentary democracy has died and all that remains to be done is to bury it while a judge intones its obituary?

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But there are also voices in favour of the constituent role of Parliament among men of law, some of whom have the same stature as some of its critics. They see in the ‘doctrine’ a dangerous distortion of the constitutional position regarding so important a part of the Constitution as the provisions relating to its amendment. A former judge of the Supreme Court and three peers of Nariman, all of them Senior Advocates of the Supreme Court like himself, have drawn attention to situations that must be seen as disturbing regardless of where one stands in respect of the ‘doctrine of basic features’. Their comments show how indefensible it would be if one side went ahead and did something indefensible in the belief that the other side was going to do it, and it decided to be the first to land its own fist in the other’s face. Is the ‘doctrine’ just such a fist? What could the ‘doctrine’ do that the laws for defending minority rights cannot do against a ‘majority’ becoming ‘majoritarian’? Or would enlightened public opinion be a better safeguard? Or is such public opinion also to be seen now as beyond our reach?

FLAWS

IN THE

‘DOCTRINE’

The phenomenon of the ‘doctrine’ and the meaning of its words justify the comments by Justice S. Ranganathan, and by two Senior Advocates, P.P. Rao and Raju Ramachandran, while an article by a third Senior Advocate, Andhyarujina, invites the allimportant question whether the Supreme Court should draw a line, and if so where, between interpreting the Constitution and interpolating something into it without meeting the requirements of Article 368. Two of the most cited authorities on the constitutional law of India, Seervai and D.D. Basu, have also provided valuable insights. Justice S. Ranganathan contemplated this dilemma in his Memorial Lecture in honour of Sir Alladi Krishnaswami Ayyar, one of the great luminaries who wrote the Constitution. Justice Ranganathan said ‘It does not seem likely that the Constitution makers intended to repose in the judiciary the power to pronounce even on the validity of a constitutional amendment.’ In his own lecture in the same series, Senior Advocate P.P. Rao said, ‘. . . [the

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doctrine of] “basic structure” remains a vague and undefined concept . . . At the same time in the folds of the vagueness of “basic structure” lies limitless judicial power.’ Referring to the judgment in the Keshavananda case, which gave birth to the ‘doctrine’, Rao said ‘This single decision has deflected the balance of power decisively in favour of the judiciary at the cost of Parliament, and cast a cloud of uncertainty over the amending power’ of Parliament in its constituent mode. In his article in the book Supreme But Not Infallible, another Senior Advocate, Raju Ramachandran, says the ‘doctrine’ is ‘antidemocratic’ because under its cover ‘unelected judges have assumed vast political power not given to them by the Constitution’. He examines the whole set of cases having a bearing on the ‘doctrine’ and draws attention to two features which are common to them: one, that they uncover a struggle for power between the Supreme Court and Parliament, and two that the Court extended its domain step by step as the power of Parliament declined because of the deplorable way it conducts its business. He concludes ‘The basic structure doctrine proceeds upon a distrust of the democratic process, which itself must surely be a part of the basic structure. In limiting the amending power, the basic structure in fact stifles democracy, a basic feature’. Ramachandran could also have added two more to the two ‘features’ he has mentioned: first, since the time it so readily accepted the proclamation of Emergency by Mrs Gandhi, Parliament has been under a shadow in the public mind, a shadow which becomes ever darker each time Parliament is seen to be embroiled in disgraceful behaviour by so many of its members; and second, large sections of the people have become alienated from Parliament, and even from the electoral process, because of the victory of what are described as ‘majoritarian’ parties in some recent elections. (The word majoritarian is not recognized in the Shorter Oxford English Dictionary. It is in the Webster, which describes it as ‘a majority in a state of hysteria’.) On the other hand Andhyarujina, in his article in the same book, shows how far the Supreme Court has carried its power of amending the Constitution by stretching its power of interpreting it. He notes, ‘The framers of the Indian Constitution, after deep deliberation extending over several years, rejected the US concept of

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due process in the Indian Constitution.’ He then traces various cases in which the courts have interpreted the Constitution, particularly Articles 14 and 21, and argues that these interpretations have ‘introduced the concept of due process of law in the Indian Constitution’. He then pleads, ‘The viable constitutional law of India since 1978 has been the concept of due process of law in the Constitution,’ and adds, ‘It is time to recognize that’, never mind the fact, which he recognizes, that the concept was rejected by ‘the framers of the Indian Constitution’. Andhyarujina also says, ‘The concept of “due process” . . . has given vast and undefined powers to the American judiciary over federal and state legislatures and their actions.’ He then adds that ‘despite the deliberate omission’ of due process ‘by the makers of the Indian Constitution . . . the Supreme Court of India by a process of interpretation’ of Article 14 (Right to Equality) and Article 21 (Protection of Life and Personal Liberty) ‘has for all practical purposes introduced the concept of due process of law in the Constitution of India. The judiciary has thereby acquired vast power to supervise and invalidate any union and state action, whether legislative or executive, or of any public authority, perceived by the Court to be “arbitrary” or unreasonable.’ Seervai takes a different view of that. He says (in the third edition of The Constitutional Law of India, p. 291), ‘To read into Articles 14 and 19 an equal standard of reasonableness would be to introduce in the Indian Constitution the concept of “due process” of the American law, and our Supreme Court has repeatedly held that “due process” does not apply to our Constitution.’ He goes on to explain that the phrase used in the Indian Constitution for the Indian concept is ‘procedure established by law’ and it does not mean ‘the “due process” as defined in USA’ (ibid.: 300–301). He also notes that the phrase used in the Magna Carta is ‘the law of the land’. The dividing line between the two concepts, and the room it leaves for legitimately differing interpretations, depending on the circumstances of the case, becomes more hazy as one notes what Herman Pritchet, noted authority on the American Constitution, says in his book of the same name, that the Pilgrim Fathers took the Magna Carta with them across the Atlantic and with it took the concept of ‘the law of the land’. The difference between the two phrases, ‘law of the land’ and ‘procedure established by law’ is

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probably steeped in historical usages and may need more light than it sheds. But both give a place to the law making authority. Further, when Seervai adds on page 971 (of the fourth edition) that Article 22 of the Constitution ‘reintroduces due process’ he also shows that if ‘due process’ is needed it can be brought into the Constitution by the front door and not, it follows, in the camouflage of the ‘doctrine’. It would be uncharitable to imply (but perhaps unrealistic to rule it out) that in making the words ‘procedure established by law’ read more like ‘due process’ by the wizardry of ‘interpretation’ the Supreme Court was motivated only by the desire to acquire the same ‘vast and undefined powers’ which the American judiciary has derived ‘over the federal and state legislatures’ from the concept of ‘due process’. The Court’s method may seem to be rather far fetched and capable of misuse later by less discriminating judges. But its motive might well have been only to acquire the power to ensure compliance by the executive branch with better standards of governance than can be ensured (or so it might have thought) through democratic legislation by Parliament. Nor should one underestimate the relief felt by the citizen when he sees that through the use of the power it has acquired as result of this act of novel interpretation, however questionable in other respects, the Court has acquired the power to put right matters which the executive or legislative branches have neglected or messed up. Therefore this particular act of inventive interpretation by the Supreme Court should not be put in the same category as the linguistic enterprise, unsupported by any dictionary, by which the Supreme Court has completely changed the meaning of the word ‘consultation’ in Articles 124 and 217 regarding the appointment of judges to the Supreme Court and High Courts, respectively. The Constitution authorizes the President to make these appointments ‘after consultation’ with such other judges as he may ‘deem necessary’. But the meaning of the word ‘consultation’ was changed to an extent best left to be described by an expert, in this case D.D. Basu. On page 175 of the seventh edition of his well known work ‘Constitutional Law of India’, he says ‘Earlier it was understood that consultation does not mean concurrence. It was so laid down in Gupta vs. Union of India (1982). But in 1993 (S.C. Advocates vs. Union of India) the Supreme Court (9-judge bench) has revised

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its view. The Court has held that “consultation” would almost mean “concurrence or consent”. The opinion of the Chief Justice of India has been given primacy in all appointments. No appointment of any judge can be made unless it is in conformity with the opinion of the Chief Justice of India.’ If this reading of the case by Basu is correct, and one has seen no evidence to the contrary, the judgment would justify a PIL by someone on behalf of the English language. By other exercises in ‘interpreting’ just two of its Articles the Supreme Court has affected the whole Constitution by implanting in it just what the Constituent Assembly had rejected after ‘deep deliberation extending over several years’ (as Andhyarujina puts it). Thus in a very basic sense the Court has rewritten a fundamental feature of the Indian Constitution by which ‘the makers of the Indian Constitution’ had so carefully defined the domains of the judiciary, the legislature and the executive. In the process the Court has also assumed an amendatory function that excludes the states from the role assigned to them by the corresponding function as laid down in Article 368. Nor should one overlook the oft-witnessed fact that the imposition of authoritarian rule in a democracy, which has not been well managed by elected representatives, is usually welcomed by the people for a time. But that does not make authoritarianism a preferable mode of governance, nor does it soften the grief of people when they discover, as they invariably do after some time, that they have only replaced an inefficient but democratic regime with one that is neither efficient nor democratic. However, the issue here is not whether any feature of the Constitution is ‘basic’ and whether anyone, and if so who, should have the authority to change it. Obviously, one feature can be more important than another. But should any of them be blocked off from the power given to Parliament by the Constitution to amend any feature? Similarly, the question is not whether India would be better off under the ‘US concept’ or any other version of ‘due process’. The question is whether anything the authors of the Constitution kept out of it ‘after deep deliberation’ can be brought into it by the back door of incremental interpretations, as ‘due process’ has been according to Andhyarujina. Conversely, can the ‘doctrine of basic features’ be used to block an amendment that

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has been adopted by Parliament in full compliance with the Constitution? Or should any such empowerment of the ‘doctrine’ be publicly debated in Parliament and then, to the extent it is preferred over whatever it replaces, be adopted democratically? Or should one accept that our parliamentary system is no longer capable of such debates? It is this last question that confronts us in the form of the last of the 10 questions on which the brief introduction to this paper has been based. Confronting that question, however is the experience, acknowledged by eminent authorities, that by using the constituent power the Constitution has given to Parliament, and without resort to any extraneous doctrine, it has been possible to introduce much of due process into the Constitution by way of the 44th Constitutional Amendment. It imposes a number of restraints upon the restrictive powers which the executive would otherwise derive from various provisions of the Constitution.

Principles of Interpretation The principles of interpretation and amendment are clear enough. After scrutinizing constitutions around the world, Seervai has laid out the principles in his authoritative work, Constitutional Law of India. In the chapter on interpretation he emphasizes that what is not in the language of the text is not in its meaning, and nothing can be inserted into the text on behalf of considerations or criteria that find no place in the text. The ‘doctrine’ finds none. Besides, there is much less room for judge-made laws in a country like India, which has a more detailed and explicit constitution than there is in a country like America, which hardly has a constitution. Britain has even less. While there is ample room for amendments in India because Article 368 has left everything open for it, be it only through a specified process, there is little of it for the ‘doctrine’. After an exhaustive survey of the amendments made so far, Seervai has shown that all of them are protected or authorized by the language of the Constitution. They do not need and cannot get any more protection or authority from a doctrine that itself is not reflected in that language. Almost anything that can be called basic is related by its language, substance, meaning or place in the Constitution to

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the language of one or another provision or structure of the Constitution. It is, therefore, protected by the latter and can be amended only in the manner and to the extent permitted by the Constitution. Otherwise it would be struck down on grounds of inconsistency and vires. The difference between striking down an amendment under the ‘doctrine’ and doing it under the Constitution is not merely technical. It is profound. The former method sidelines the Constitution, the latter affirms its sanctity, which is the bulwark for ensuring the stability of the constitutional system. Every time the Supreme Court bypasses the Constitution in the name of public good, it reinforces the classic claim of the military dictator that he is taking over only because democracy is too slow or it only produces ‘majoritarian’ rule. His claim may well be true. But there are laws for protecting the rights of minorities, and all of them have been passed by majorities. If the courts were more open and faster in applying them, the judicial system and the minorities would be better off than either would be by virtue of the ‘doctrine’ alone. In the long run public interest is served better when Parliament respects public opinion, courts respect laws, and both keep their processes open and transparent so that public opinion is educated and updated more regularly. For, be it remembered, it was judges, not Parliament, which first succumbed to the ambitions of Indira Gandhi, and she was overthrown by an aroused electorate, not by ‘doctrines’ produced by judges huddled in their chambers. And be it remembered too that over the years almost as many judges have weighed in on one side as on the other side in cases like Golak Nath and Keshavananda. So the judicial virtues associated with one side of the judiciary are no more virtuous than those associated with the opposite side. It is also through the Constitution and the amendments to it, not through the ‘doctrine’, that a more protected place has been given to such features of ‘due process’ as have been accommodated in the Constitution, for example through the 44th amendment. The implications and constitutional consequences of the ‘doctrine’ can be so far-reaching that any attempt to introduce it in our constitutional system should have more solid foundations than the present attempt can claim. The foundations exist mainly, if not only, in the Keshavananda case, and how fragile and fragmented

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they are even there has been pointed out by such a notable authority as Seervai. Though he is quite supportive of the professed aims of the ‘doctrine’, in his chapter on amendment of the Constitution in his book on the constitutional law of India, he quotes Justice Chandrachud at length on page 2665 to show how deeply the bench was divided in two almost equal halves in delivering the Keshavananda judgment. In a layman’s reading of it, there were further divisions within each of the two halves regarding certain aspects of the Articles of the Constitution on which the judgment rested, and also regarding the kind of surgery which would make one of these Articles more amenable, and regarding the extent of this amenability even after that. Seervai’s own comments, on pages 2638 and 2639 (of the third edition), are even more revealing. On these pages Seervai first depicts the fate of the judgment in the Golak Nath case, which is an unseverable prelude to the drama of the Keshavananda judgment. He then shows how the Chief Justice in the latter case, Justice Sikri, objected to an observation in the draft of the majority judgment in Golak Nath and how, because of his objection, the observation was deleted from the judgment though he was a party to it himself. Seervai then adds about Keshavananda: Eleven judgments were handed down . . . and with them there came to an end a case the like of which, it is to be hoped, will not be heard in our Supreme Court again. For the first time in the history of our Supreme Court judges gave a ‘summary’ of the judgments, a ‘summary’ which four judges refused to sign because of its inaccuracy; and for the first time a judge of our Supreme Court, Chandrachud J., entered a dignified protest at the turn the case had taken. A cooling comment was supplied by Justice Beg, as he did so often in situations which can only be saved by some wit and humour. He said: The cases before us have become so much loaded with learning and marked by brilliance of exposition of all the points involved, either directly or indirectly, both by my learned brethren and

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the members of the Bar. . . that we do stand in danger. . . of losing the wood for the trees, and if we get entangled in the branches of the trees we may miss reaching the destination: the correct conclusion or decision. Regardless of what he would have regarded as a correct conclusion, he was proved prophetic because we are still entangled in the branches and blinded by the trees. But the coup de grâce to the Keshavananda drama has been provided by Seervai (p. 2641). He writes: It is submitted that the summary signed by 9 judges has no legal effect at all, and it is no law declared under Art. 141 [law declared by Supreme Court to be binding on all courts] because: (a) The order passed by the Full Bench was a unanimous order, so that no occasion arose for determining what the majority of judges had decided. (b) Though all the 13 judges signed the unanimous order of the Court, four of them declined to sign the summary, which shows that there was a difference of opinion among the judges as to what the majority had decided. That conflict could only be resolved by the Constitution Benches to which the petitions were remitted to be disposed of according to law. That law was to be found principally in the Keshavananda case and no summary made by nine judges without any argument can relieve a Constitution Bench of the duty of finding out the law for itself. . . . But the full bench disabled itself from doing so when it remitted the petitions to Constitution Benches. (c) Any declaration of law which affects the rights of parties cannot be made till the parties have been heard or have been given the opportunity of being heard. . . . The Supreme Court has repeatedly held that any decision arrived at without hearing the parties whose rights would be affected is contrary to natural justice and void. . . . [This could not be done] because the Chief Justice was to retire on the day the judgments were to be delivered.

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This comment by Seervai not only shows how incomplete and fractured the foundations which are said to have been provided for the ‘doctrine’ by the Keshavananda judgment are, it also shows how extraneous procedural requirements (the imminent retirement of the Chief Justice) were arbitrarily allowed by the Court to curtail a substantial legal aspect of the judgment in so important a matter. Elsewhere (pp. 2673–75) he rightly argues that these shortcomings of the Keshavananda case would not justify a view that ‘Article 368 vests the legislative, executive, and judicial powers in the constituent body which can exercise all those powers by an amendment ’. But in the process he also shows that the Constitution itself has put many limitations on the amending power set out in Article 368 (p. 2673). Because of these limitations many basic features stand protected without any extraconstitutional device like the ‘doctrine’. Nor can any need for the ‘doctrine’ be derived from the observation by J. Chandrachud, which Seervai rightly upholds, that ‘the power of amendment cannot be exercised so as to damage or destroy the essential elements or the basic structure of the Constitution, whatever these expressions may comprehend’. This is because Chandrachud himself goes on to argue: For determining whether a particular feature of the Constitution is part of its basic structure, one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as the fundamental instrument of the country’s governance. In other words, it has to be examined in the light of and on the basis of the Constitution itself, the totality of its text, and interpretation of the text on the basis of certain well-recognized principles of interpretation, which allow a very wide scope for interpretation, as Seervai has shown. Where in all this is there need or room for any extra-constitutional ‘doctrine’? On the other hand, even without such far-reaching use of the power of interpretation as in the matter of appointment of judges, without putting the Constitution on its head as in the matter of choosing between ‘due process’ and ‘procedure according to law’,

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without the aid of something so unknown to the Indian Constitution as the ‘doctrine’, and while yet remaining within the generally accepted principles of interpretation, the Court already has, in Articles 14, 19, 21, and 22, and then in the 44th Amendment too, wide access to the yardsticks of reasonableness available in ‘due process’, and to the criteria for applying them in judging laws and executive actions. But even assuming that some device like the ‘doctrine’ can serve some public purpose, it can do that much better if it is enshrined in the Constitution by an open political process, not insinuated into the system by people whose faith in the Constitution appears to have faltered. Any such device should be debated openly, and debated as long as needed, and then led into the Constitution by Parliament itself, not behind its back.

Getting Us Back on Track What is happening at present is that while the Supreme Court and Parliament fight each other ‘for custody and control’ of the Constitution, neither helps much in educating the people in what their Constitution is all about, and the people as voters get only one chance in so many years to help the rulers understand what the voters are all about. Thus, the linkage between the people and the institutions of which they are the foundation grows weaker, and the whole structure loses strength and stability. Some attempts to strengthen the linkages have been made from time to time, both within and outside the federal frame. If they were followed up with action, the system would gain. But they have not been. If more time is lost, the opportunity will pass. But not all of it has been lost as yet. Valuable recommendations were made by the Sarkaria Commission regarding the main linkage within the federal frame, that is, the constitutional, economic and administrative relations between the federal centre and the federated states. They have been recently reiterated and supported by the National Commission to Review the Working of the Constitution. Not all of them have received universal support in all their aspects because experts and politicians at each of the two levels have viewed them in their own respective perspectives, which is understandable up to a point. But

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there has not been, because there could not have been, any disagreement between the two commissions, or between either commission and other concerned agencies and individuals, on the core proposal by both commissions for improving the working of the federal system by ensuring more regular and sustained consultation between the two levels. That would make the existing recommendations more practicable by identifying and resolving real-life difficulties, and at the same time would illuminate pathways to more improvements in future. The key institution for catalysing such consultations already exists in Article 263 of the Constitution in the shape of the long but inexplicably neglected Interstate Council. But all three branches of the governing system, legislative, economic and administrative, have been guilty of this neglect. At one time it used to be claimed that such additional mechanisms were not needed because with the same party in power at both levels and in most of the country, enough inter-governmental consultation was taking place in the councils of the party. That is no longer so. On the other hand, the need for such a non-party or all-party channel for sustained dialogue between governments at the two levels has become all the greater because a variety of parties have come to power at each level, often within the same government, and differences of outlook have to be sorted out on a daily basis. The Review Commission says, ‘In view of frequent friction between the Union and the states and between the states’, the Interstate Council mechanism ‘has become more relevant’. Casting its net a little wider, the Review Commission has also come up with two recommendations that have the potential of going a long way in arresting the decline of parliamentary institutions in public esteem, which in turn has made the constituent power of Parliament weaker as against the case the Supreme Court has built up in favour of the ‘doctrine of basic features’. At the same time, the recommendations would also help put the federal system on a stronger footing because they would give a more representative character to legislatures elected by the people and greater stability to the governments supported by the legislatures. The need for these reforms has also become more sharp as inter-party competition for power has become more acute, and the number and weight of those parties has increased which may be small in

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size but have enough members who are swift enough on their political feet to turn the balance of legislative politics in favour of or against the government of the day. For making legislatures more accurate reflections of the electorate’s choice, the Commission has recommended that the government, the Election Commission and all political parties should seriously examine a proposal that has received much support in public debates, that the present first-past-the-post electoral system should be replaced by the requirement that a candidate be declared elected only when, in a run-off election if necessary, he gets ‘a minimum of 50 per cent votes plus one’. That would end the present most undesirable position that a candidate can get elected with only, let us, 25 per cent of the vote if that is the highest share polled by any candidate. Closely parallel to the logic of this proposal is that of the second, which relates to the stability of the Union governments elected by Lok Sabha and state governments elected by the respective legislatures. Both are affected by the malady of short-sighted rivalries between political parties, whether at one or both levels of the federation. At present legislatures can—and do, more often than not—elect governments which are in minority in both senses. First, the combined vote of the legislators who sit on the government benches may have been less than the combined vote of the legislators who sit on the opposition benches. Second, the government might have the support of fewer legislators than those who oppose it but survives only because the opposition cannot combine behind an alternative. Therefore, the government can claim the support of only a minority of legislators elected by a minority of voters. That severely undermines the political credentials of the concerned governments and legislators. A court’s judgment on the other hand does not become a judgment unless it has the support of the majority of the bench, no matter how small the margin might be. This handicap for the parliamentary wing of the polity can be mitigated, depending upon how the Union government and political parties respond to the Review Commission’s recommendation for a serious consideration of a proposal that has been on many political tables for long, and would be a major improvement upon the present procedure for forming governments at the federal centre and in the federated states. The present procedure is that

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only the President or the concerned governor, acting purely in his own subjective judgment, nominates a person who, in his opinion, is not likely to be rejected by Parliament or the concerned legislature, and to invite him to form the government. The Lok Sabha and state legislatures may come into the picture only if they wish to unseat the government, and they can do so through a one-line vote of lack of confidence in the government. If the vote in favour of the government is less than the vote against it, without counting abstentions on either side, then the government falls. The alternative that the Review Commission wishes the government and parties to explore seriously, and that many other institutions and concerned public figures have been supporting for long, is that it should be for the concerned House to elect a leader, and he should be declared elected only when, if necessary in runoff elections, he has won the vote of at least 50 per cent plus at least one of the members of the House who are present and voting. He should then be invited to form the government. A second part of the proposal, which has also been favoured by many, is that a majority vote of no-confidence in the government of the day should unseat the government only when it is accompanied by a majority vote of confidence in an alternative. Both these recommendations, and many others that are available, would help to control the uses and many abuses of Article 356, under which the President, on the (binding) advice of the federal government, can dismiss the government of a constituent state on the basis of nothing more than a report of the governor of the state, who is always appointed by the federal centre, that the government of the state ‘cannot be carried on on the basis of the Constitution’, a criterion that is vague enough to cover a variety of real and (often) imaginary sins. Most of the recommendations concerning this Article would, if implemented, restrain use of the Article for purposes not connected with the reasons stated for its use, and would promote prior resort to many alternative and milder remedies to see if the concerned state government can be persuaded to correct its errors before it is confronted with dismissal, and be given a prior chance to explain itself. Very few state governments and state-level parties have pressed for abolition of Article 356. But fewer still have justified all of its abuses, which are among the more serious blots on the polity, though some short-

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sighted political parties, when in the opposition, have demanded dismissal of the government of the day in one state or another. Other improvements that have been on the table for years concern fiscal and financial arrangements between federal centre and the federated states. But valuable political proposals and suggestions have also emerged from proceedings in courts. For example in Sajjan Singh vs State of Rajasthan, 1964, a five-judge Bench of the Supreme Court reiterated by a majority of three to two what the five-judge Bench in Shankari Prasad vs Union of India, 1951, had unanimously said earlier, that Parliament could ‘abridge or take away’ any Fundamental Right under Article 368 so long as it did so by the special majorities prescribed in the provisos to that Article, which really means by a majority of the whole electorate. But the majority in Sajjan Singh also ‘suggested’ to Parliament that Fundamental Rights also be covered by the same provisos. They would then cease to be ‘unamendable’ (which nothing is, according to any legitimate interpretation of the Constitution), but on the other hand it would not be possible for Parliament to curtail any of them without the specific consent of a majority of the voters. Unfortunately, the suggestion ‘was ignored’, as Nariman records in The Indian Advocate (Volume XXIII, Part I, 1991). Another effort to get us back to the basic sovereignty of the people was made in 1978, the time when ‘the people’ were more in our thoughts than at any time before or since. It was suggested then that a referendum should be required for the adoption of certain types of amendment to the Constitution. If this were accepted, amendments to Fundamental Rights could be listed as one of those types. Members of Parliament and men of law would be better off publicly debating what else, if anything, should go into that list of specially protected clauses of the Constitution; much better off than they can be while trying to smuggle matters and concepts into the Constitution that do not belong there. Informed and enlightened public opinion, which would then be generated, would bridge the gap between the ‘doctrine’ on the one hand and on the other the role of Parliament ‘meeting in the exercise of constituent power’ under Article 368. It would be a publicly accepted response to an evolving shift in the values and choices of the electorate. There are many examples of such shifts being openly incorporated into our system by democratic means, both when the

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Constituent Assembly was framing the Constitution, and since then too. Examples of the former type are the whole of Part III of the Constitution, which affirms the fundamental and enforceable rights of the citizen to equality, freedom, constitutional remedies, as also rights against exploitation, freedom of religion and educational rights, and the whole of Part IV and Part IV-A. These spell out certain Directive Principles of State Policy and Fundamental Duties. These may not be enforceable, but can be powerful tools for mobilizing public opinion. An example from the period after the adoption of the Constitution is the increasing use of public interest litigation and human rights movements. They have enlarged and have been enlarged by Parts III, IV and IV-A. They have also narrowed the gap between the Indian regime of ‘process established by law’ and the American regime of ‘due process’, and that too without resort to questionable ways of amending the Constitution. Again, it was public support that brought success to a good judicial initiative for de-fanging Article 356. But the road to such shifts in public opinion and values does not lie through cloisters that may be thick with erudition but are not open to the public. Nor does it lie through battles between the Supreme Court and Parliament for capturing the Constitution in the name of democracy. Nor does it lie through such an absurdly elitist proposition as ‘protecting the public’ against a Parliament that the people have themselves elected, because so far no one has discovered a more comprehensive definition of the political personality of ‘the public’ in a universal adult franchise democracy than is encompassed in the single phrase, ‘the electorate’. It is that public that elects the parliament and that can dethrone it if it passes unacceptable laws. That is a much better road to future shifts in the public’s values and choices than any dictat in the guise of erudition. The same public and the same electorate also have the sole answer to a question raised by a Senior Advocate, S.K. Dholakia. In a recent conversation, cited here by permission, he asked: What should a judge do when he is confronted by a situation which under our system can be very unfair to the accused? Our system tells the judge he can only apply the laws handed down by Parliament, which might or not coincide with his idea of

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what the law should be in a decent and just society. But the available law may seem to him to be unfair to the accused in the circumstances of the case before him. Or the law may be ‘majoritarian’, to add the dilemma posed by Nariman. The judge may then have to choose between stepping outside the limits of the law or failing to deliver what he sees as justice. Which course should he choose? To these existentialist questions there can only be an existentialist answer. But if the question be conceptual, there can also be a conceptual answer. To take the existential issue first. How many times has Parliament passed laws which are bad for the country but are adopted in a sudden burst of ‘majoritarianism’ (which, by the only dictionary meaning one has been able to find, means mass hysteria, as mentioned earlier). The trouble with our Parliament is not that it takes wrong decisions or adopts wrong laws, but that for some time now it has been so besieged by rowdy behaviour that it can neither take decisions nor deliver laws. The only close example of something it did which was drastically wrong is the proclamation of Emergency, and we all know how effectively the democratic process was able to quash that, more effectively than the Supreme Court chose to do. We also know how inconsistent laws passed by Parliament can be. But an example of inconsistency that would be hard to beat are successive judgments by the Supreme Court as it travelled from Sajjan Singh, to Golak Nath, to Keshavananda, to the Election case, or the ease with which the word ‘consultation’ could be changed into ‘concurrence’ with some judicial skill. But these examples of failure should be treated as the aberrations they are, not permanent ills either of the judicial or the parliamentary system. Both are curable through better practices and public pressure. The conceptual issue is more serious. The answer to it rests on the answers to twin questions: Do we believe that our federal parliamentary democracy has not failed but needs improvements? If the answer is yes, then a serious effort should be made to carry out the required improvements through the ample means available within the system for carrying them out democratically. Or do we believe that the system itself is intrinsically wrong and was

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destined to fail? If that be the answer then an effort should be made to replace it through a national consensus. But in either case an undemocratic replacement by a handful of people who man a key institution can unleash a much bigger and much less democratic replacement. Much more may be thrown out of the window than anyone had bargained for. Judges in khaki could be a part of the consequences. How urgent are these questions and choices? Not very, it may seem. But how many of us had foreseen, even a couple of years before those events, that India would be under an Emergency as it was in 1975? Or that Kerala, the first place anywhere in the world to elect a communist government democratically, would get the whiplash of Article 356? Or that West Bengal would get it too just a decade later? The moral of these tales of blunder is clear. So long as the means are available for someone to invade another’s domain, he will do it, including a general who may fancy himself in a wig and black robes. It is wiser to have safety catches in place, and in time.

A FEW CONCLUSIONS At the end, a brief return to the 10 questions posed at the start as an introduction to this long argument, and to provide some possible answers to the questions by way of conclusions. 1. The question:

Given that India has a detailed and written Constitution, can the Supreme Court so interpret it as to bring into it what the Constituent Assembly had rejected ‘after a great deal of deliberation’? The answer:

No. To interpret or interpolate anything into a detailed and written Constitution which the Constituent Assembly had rejected ‘after long and deliberate consideration’ is to risk a war of words. Like other wars, this one also may be started by one person but finished by another. The Supreme Court might have taken the risk with the good motive of making the Constitution a better tool for the greater

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good of more people. But in fact the Court may have ended up making an opening for the man on a horseback, who always claims he is stepping in only because democracy is making a mess of things. He is also unlikely to take kindly to courts as we know them. 2. The question:

Can the amending process bypass the role given by the Constitution to the federating states in amending the Constitution? The answer:

No. This would be the most dangerous bypass made in the history of the Indian Union. The Union was only made possible by the willing consent of all those who constitute it, and it can be best served only by their willing consent to remain within it. 3. The question:

Is the Supreme Court’s power to strike down a constitutional amendment drawn only from the Constitution or can it be drawn from other sources too? The answer:

The amending power is drawn only from the Constitution, as amended from time to time by the means provided for this purpose in the Constitution itself. The only ‘other source’ would be another constitution written by another constituent assembly after putting the present Union to rest. 4. The question:

Do the generally accepted principles of interpretation restrict the Supreme Court’s power to interpret the Constitution? The answer:

Yes, they do. Anything outside the generally accepted meaning and means of ‘interpretation’ would be a violation of or transgression against the present Constitution. It would also be the beginning of its end.

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5. The question:

Can a law duly passed by Parliament and consistent with the Constitution be struck down by the Supreme Court on the sole grounds that it is inconsistent with the Court’s view of what the law ought to be in a reasonable and just society? The answer:

A democratic society that has a detailed and written constitution works through all of its many institutions to evolve a democratic consensus on what is ‘reasonable’ and ‘just’ for it. It is in response to that consensus that its law-making institutions make laws that are also just and reasonable, and are effective and durable because they are backed by public opinion. Its judicial institutions then apply the laws for judging the matters before them, interpreting them in the light of the Constitution, the legislation and the facts of the case. Their judgments, in turn, play an important and democratic part in the further evolution of the consensus. Specific judgments become laws within the constitutional frame, unless found to be faulty on grounds of their vires. Judges are effective players within that frame, but if they step outside it once too often they can invite overthrow of the system itself. 6. The question:

Given that a country’s constitution and laws should evolve with changes in the needs and values of society, should they be changed through electoral and parliamentary processes or through judicial pronouncement? The answer:

The question is either unnecessary or premature. It is a fundamental assumption of the democratic system that electoral verdicts reflect the sum total of the electorate’s view of the country’s evolving ‘needs and values’, parliaments make laws in the light of the verdict, and courts ensure that the laws remain faithful to the constitution. No alternative means are needed unless the assumption breaks down. If it does, a lot will have to happen before it can be known who will make laws in future.

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7. The question:

How is a judge to deliver justice if unjust laws are delivered by a ‘majoritarian’ legislature? The answer:

Leaving aside the semantic question of the difference between the rights of a ‘majority’ and ‘majoritarianism’, a part of the ‘fundamental assumption’ mentioned in the earlier answer is that minorities also have rights that are protected by the Constitution. The Constitution and the laws are clear on that. Evidence to the contrary is scanty. A law that would violate these rights can be struck down by courts as unconstitutional, just as any law would be that would violate the rights anyone else has under the Constitution. The Constitution and these laws were adopted by majority votes. 8. The question:

Is India’s democracy in terminal decline? What can keep it from collapsing? The answer:

One part of the answer is a vigorous no; another is a creeping yes. The test of a democracy is that people wish to participate in it, do so with their legs by going to polling booths, and then vote without fear. This test Indian voters have passed with flying colours in all recent elections, including the latest, and have unseated the government of the day as often as they have not. But democracy will collapse if the fence starts eating the crop. One part of the fence, Parliament, has been doing so for some years. Another part, the Supreme Court, would be doing so too if it ignored so important a provision of the Constitution as Article 368, or used its right to interpret the Constitution to interpolate into it what the Constituent Assembly had clearly rejected. Parliament has not challenged the Constitution yet. The Supreme Court has.

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9. The question:

If nothing can stop democracy from collapsing, what should replace it and how? The answer:

If democracy collapses, the question before us will not be what should replace it, but what can. ‘Should’ implies legitimacy and propriety. Both yardsticks will disappear if the electorate and Parliament disappear, and not much thought will be left for what is left of the Supreme Court. 10. The question:

What should be the role of the electorate, political parties, public opinion, in making this choice? The answer:

If collapse of democracy forced us to make any such choice, the choice would be made by players with whom, fortunately, we are not very familiar yet. But they will, unfortunately, become very familiar to all of us when they do step in. All others will step into oblivion.

NOTES 1. 2. 3.

Constituent Assembly debates. Pandit Nehru’s speeches, Vol. 1, published by Government of India. Constitutional Law of India, by D.D. Basu, 7th edition, p. 470, lists 20 ‘features’ as ‘basic’, ranging from specific Articles and clauses to concepts such as ‘supremacy of the Constitution’, ‘the principle of free and fair elections’, ‘freedom and dignity of the individual’, ‘effective access to justice’, and so on.

Part I PERSPECTIVES

1 BASIC STRUCTURE: AFTER 30 YEARS N.R. Madhava Menon

RADICAL CHANGES

T

he Indian Constitution today is very different in content and concerns from what it was at the commencement of the republic. The original text has undergone many changes, some of which are beyond the imagination of even its framers. Parliament made nearly 100 amendments, some inconsequential in nature, some corrective of the distortions that had crept in, and still others to advance developmental goals. As compared to this, what the Supreme Court has done through a couple of judgments is indeed radical enough to alter the very character of the Constitution as originally conceived by the Constituent Assembly. Among such radical changes rendered by the Court are the discovery of ‘basic features’ beyond the amending powers of Parliament, the introduction of the ‘due process clause’ in its substantive and procedural aspects in the reading of Article 21 and Article 14, and the generation of numerous rights and freedoms not expressly given in Part III of the Constitution. In doing so, the Supreme Court has assumed powers that, many constitutional scholars believe, do not belong to it. How it happened and why are questions seldom asked today. It is for constitutional historians and political scientists to debate them and pass judgments, either supporting the judiciary or regretting parliamentary lapses. Either way, we have today the world’s most powerful judiciary guiding the constitutional destiny of ‘We, the People of India’.

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In a well-researched paper, provocatively titled ‘Supreme Court versus the Constitution’, Pran Chopra contends that the role of the Court endangers parliamentary democracy and ‘it is wiser to have safety catches in place, and in time’ lest ‘a handful of people who man a key institution’ (the judiciary) should subvert the federal parliamentary democracy in the name of protecting public interest! Though one may have difficulty in agreeing with the proposition in toto, none can deny that the issue raised is too big and important to be left to the discretionary judgment, however well reasoned and humane, of a dozen or more judges of the apex court. What is at stake is the way we, the people of India, have resolved to govern ourselves and the manner in which human rights and democratic accountability are sought to be achieved under a federal polity. In the final analysis in any constitutional democracy, power resides with the people and it is exercised through rule of law reflecting their collective will. Constitutional institutions are only instruments which exercise limited power in a system where power is divided and operated through checks and balances. The purpose of this paper is to examine the nature, scope and limits of judicial power vis-à-vis Parliament under the Indian constitutional scheme and to debate whether Pran Chopra’s apprehension is real or imaginary at the present juncture.

UNCERTAINTY

OF

BASIC FEATURES

A five-judge Bench of the Supreme Court in the Shankari Prasad case (AIR 1951 SC 458) unanimously held within a year after the commencement of the Constitution that Parliament had unfettered power to amend the Constitution. This position was reiterated by majority in the Sajjan Singh case (AIR 1965 SC 845) 15 years later though a minority view doubted the amenability of Fundamental Rights. The settled law on Parliament’s power to amend any part of the Constitution was reversed in the 11-judge Bench decision in the Golak Nath case (AIR 1967 SC 1643) by a narrow majority of six to five. Chief Justice Subba Rao in effect ruled that Fundamental Rights cannot be abrogated even by an amendment of the Constitution because amendments are also laws within the

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meaning of Article 13. The shift in the Court’s perception can be understood only in terms of the socio-political developments of the times. The repeated judicial interventions against zamindari abolition and land reform laws based on inadequacy of compensation under right to property guarantee did create distrust between Parliament and the judiciary, each claiming to interpret constitutional intent in opposing fashion. Parliament ultimately won, though in the process the people lost a valuable right originally guaranteed as a Fundamental Right under the Constitution (Right to Property) (Article 31), deleted from Part III by Constitution (44th Amendment Act, 1978). The birth of the basic features doctrine happened in the Keshavananda Bharati case (AIR 1973 SC 1461). Thirteen judges, by a majority of seven to six, overruled Golak Nath to declare that the Constitution has certain ‘basic features’ that cannot be altered or destroyed at all through the amending process. To the extent Fundamental Rights are part of the ‘basic features’ they are unamendable. It is difficult to explain how and where the majority of judges in Keshavananda Bharati discovered this unique doctrine to curtail the parliamentary power of amendment which the Court itself had repeatedly held before to be unfettered. Does the Court have such a power as part of judicial review or in its inherent jurisdiction? Interpretation of which provision of the Constitution can lead to such a result? Can such a thin majority of just one judge rewrite the constitutional text to make a substantial dent in the distribution of powers and cause erosion of parliamentary authority in legislative business? While these and related questions were debated again and again, the ‘basic structure doctrine’ has been acted upon by the Court, thereby establishing judicial supremacy on matters of constitutional principles and policies. Ambedkar, chairman of the Drafting Committee, expressed himself against such a claim by the Supreme Court. So did Jawaharlal Nehru. Both felt that such a situation would not emerge, given the clarity of the text of Article 368. In fact, it is pertinent to point out that the parliamentary political system was chosen for India because of a desire to have a strong executive government in the context of the political situation arising out of the partition of the country and the integration of states. Parliamentary sovereignty, an associated legal paradigm of

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strong executive government, became a powerful institutional fact in the working of the Constitution. However, lawyers and judges brought up in the legacy of the Common Law culture projected the argument that Parliament is only a creature of the Constitution and, therefore, primacy is with the Constitution. This logic paved the way for the acceptance of the law declared by judges having priority over all enacted laws, including constitutional amendments. In all this, there was a lurking fear of Parliament not respecting Fundamental Rights to the same degree as the judges thought the Constitution demanded. The ‘basic structure’ doctrine which the minority judges (Justices Mudholkar and Hidayatullah) hinted at in the Sajjan Singh case (AIR 1965 SC 845) came in as a solid shield against the claim of parliamentary supremacy in the matter of amendments even in the face of the explicit language of Article 368. The question is not whether such an ingenious interpretation blocking unfettered discretion for Parliament’s power of amenability has done some good against the uncertainties of majoritarian politics, or whether the Constitution is safer in the hands of the Court than of Parliament; the question is whether ‘the people’ operating through a representative parliament are helpless to determine the structure and quality of governance and whether a small, often divided, set of appointed judges can replace democratic judgment on ‘basic features’, whatever it means. One cannot forget that the infamous judgment in ADM Jabalpur (AIR 1976 SC 1207) also came from the very same court that unhesitatingly approved the suspension of the Right to Life and Liberty under Emergency laws. The difficulty arises because of the uncertainty of so-called ‘basic features’ and the inclination of the court to change its interpretation by narrow majorities from time to time. Secularism is declared a basic feature in the S.R. Bommai case (AIR 1994 SC 1918). Presumably, socialism, as interpreted by the Supreme Court in the nationalization era, is also a basic feature. If so, it may raise several questions for policy planners now involved in disinvestments and privatization that the court alone can clarify. Judicial review and judicial independence are considered part of the ‘basic features’. When the Court claims exclusive jurisdiction in deciding judicial appointments to superior courts, interpreting the written text that way, and limits power expressly

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given to the executive by the Constitution, it is legitimate to ask whether we are heading for an arrangement that is contrary to the spirit of parliamentary democracy and concentrates unfettered power in one institution, which, incidentally, is not an elected body. Can one proceed on the assumption that judges cannot go wrong and what they decide would always be in the best interests of the people? Or is it that ‘the people themselves’ do not know their interests and they need to be told by an expert body? These are discomforting questions that loom large in the public mind and present themselves whenever controversial decisions on popular issues are rendered by the Court.

‘DUE PROCESS CLAUSE’

AND

JUDICIAL POWER

If the basic structure doctrine has led to a power imbalance between the judiciary and Parliament in respect of constitutional amendments, the importation of the ‘due process clause’, consciously deleted at the time the Constitution was made, has led to an unjustifiably decisive supremacy of the judiciary over all other branches of government. Maneka Gandhi’s case (AIR 1978 SC 597) while interpreting equality before law (Article 14) said that all articles on Fundamental Rights bear relationship with one another and any law depriving a person of any of the liberties or freedoms must not only satisfy the requirements of Article 21 (procedure established by law) but also of Article 19 (equality before the law). Reading the principle of ‘reasonableness’ or nonarbitrariness as an essential attribute of equality impacting on the freedoms under Article 21 is indeed a clever way of introducing ‘due process clause’ in place of the ‘procedure established by law’ provision in that Article. Justice Krishna Iyer in his separate but concurring judgment in Maneka declared that ‘law is reasonable law, not any enacted piece’. He further said in Sunil Batra (AIR 1978 SC 1675) that though the Indian Constitution has no ‘due process’ provision, yet after the Maneka judgment the consequence is the same. Thus, by a stroke of its pen, the Supreme Court changed the course of constitutional law. The all-pervasive ‘brooding omnipresence of reasonableness’ the court discovered in the equality

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guarantee (Article 14) led to an undefined and undefinable ‘reasonableness’ doctrine, the Brahmastra, so to say, in the hands of Supreme Court judges. One can argue that if Article 14 were to be read like that, what was the necessity of stipulating reasonable restrictions in considerable details in Articles 19(2) to (6)? Perhaps in the light of the new interpretation, all rights and freedoms and their scope can be articulated from Article 14, making the rest of Part III almost redundant. ‘Due process’ today has such meaning and scope as judges from time to time might give to it. By reinterpreting Articles 14, 19 and 21, and by refusing to take note of the rejection of ‘due process clause’ in the Constituent Assembly, the judges have given to themselves the unchallengeable authority to strike down any legislation or other state action solely on the grounds that it does not appear to them to be ‘reasonable, just and fair’! Some see in this act a ‘naked usurpation of the legislative function under the thin guise of interpretation’. Judicial law making increasingly has become the order of the day and is welcomed by a large body of people who seem to have become disenchanted with the uncertainties of the electoral and parliamentary processes. But the danger inherent in such a position is there for every thinking person to see if he is knowledgeable about history. Today it may appear to be a better choice; but what is at stake is the very foundation of democracy and democratic form of government. That is why the Supreme Court itself on several occasions has reminded us that absolute power is anathema to our constitutional order. Hopefully, it applies to the Supreme Court also. Criticizing the frequent revision of the American Constitution by the American Supreme Court by using the 14th Amendment and under the guise of interpretation, many scholars and even judges of that country have warned against the dangers involved in such an extraordinary role—‘that of the nation’s paramount policy maker, a super legislature’. The Court was not empowered to rewrite the Constitution; it was specifically barred from policy making, no matter how humane or justifiable its purpose, wrote a reputed jurist (see Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Harvard University Press, 1977). The comments on the American Supreme Court’s role in exercising powers of amendment equally apply to the

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Indian Supreme Court’s assumption of extraordinary powers under the ‘basic structure’ doctrine and the ‘due process clause’, both alien to the text and history of the Indian Constitution. The threat involved is to the democratic system itself, which indeed is a basic structure, if there is one.

‘JUDICIAL WHISTLE’ Having critiqued the role of the Court in shaping the Constitution in its new avatar, it is important to see how the other two organs of the government performed in order to decide whether a change is warranted now and, if so, how it is to be achieved. The constitution of a nation is a living thing and must be allowed to evolve naturally unless a revolution overtakes it. Any attempt to redraft the Indian Constitution in its essential elements is fraught with unforeseen consequences, which at the present stage of India’s democracy very few would venture to invite. At the same time debating the strengths and weaknesses of the system and proposing alternative courses of action is the democratic way of building public opinion towards change and progress. Former Chief Justice A.S. Anand in his Millennium Law Lectures (October 1999) at the Kerala High Court Advocates’ Association, while defending judicial activism, emphasized the need for caution to ensure that activism does not become ‘judicial adventurism’. Otherwise, he warned, it might ‘lead to chaos and people would not know which organ of the state to look for to stop abuse or misuse of power’. Quoting approvingly the observations in respect of policy making by Lord Justice Lawton in Laker Airways (1977[2] WLR 234 at 267), he reiterated the principle that ‘the role of the judge is that of a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play.’ Justice Anand added: [The] judicial whistle needs to be blown for a purpose and with caution. It needs to be remembered that Court cannot run the government. The Court has the duty of implementing the constitutional safeguards that protect individual rights but they

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cannot push back the limits of the Constitution to accommodate the challenged violation. Wise words indeed for judges to remember. The problem, however, is the absence of an effective remedy when judges cross the Lakshman rekha, consciously or otherwise, leaving no remedy to restore constitutional balance. Such situations may be rare, but they do exist. All the three wings of the state are creatures of the Constitution and are bound by it. As coordinate organs of the state, there has to be complementarity among constitutional institutions and no one can claim superiority over the other. Nevertheless, in a federal system governed by a written constitution, there has to be necessarily an independent judiciary capable of resolving disputes between the federating units and the centre, as well as to judge the constitutionality of legislative and executive action in terms of the guaranteed rights of citizens. For the progress of the nation it is imperative that all the three wings of the state function in complete harmony. Unfortunately, on many occasions this did not happen and issues to be decided through political and legislative processes were brought before the courts for adjudication. While so adjudicating, courts have to review the constitutionality of the law and interpret its scope vis-à-vis the powers given under the Constitution. In doing so it is not to be understood that the court is a super legislature and sits in judgment on the wisdom of policies adopted by the legislature. It is only ensuring the observance of the provisions of the Constitution, which is the legitimate function of courts. Judicial review is fundamental to rule of law though prima facie it may appear to a lay person as anti-democratic and elitist. Courts of law are creatures of the Constitution and can act only within the sphere of their jurisdiction. There are at least two types of situation in which the Court takes on an activist posture and either assumes a legislative role or attempts to directly undertake governance. The first is where gaps and ambiguities exist in the law or where the full protection of Fundamental Rights warrants enunciation of a new policy or extension of an existing policy in conformity with the constitutional scheme and the international obligations of the state. The Visakha judgment (1997[6] SCC 241) and Lakshmi Nath Pandey case (1984[2] SCC 244) are examples of this type of judicial

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activism in the legislative sphere. The expansion of the right to life under Article 21, invoking Directive Principles, is another example of activism in areas legitimately belonging to the legislature. The second type of situation in which the Court proactively involved itself in what is generally called the executive function is where laws were left unimplemented for whatever reasons and individual rights or public interest were adversely affected thereby. Many decisions on environmental law, directing executive action even where budgetary reallocation was required, are illustrative of judicial intervention in the executive sphere. An extreme example of this type of judicial activism is the Vineet Narain case (AIR 1996 SC 3386) where through the device of ‘continuing mandamus’ the Supreme Court directed the investigation of highlevel corruption and monitored its progress till its completion with the filing of the charge sheet. From the perspective of the judiciary, it was only attempting to achieve the constitutional purpose in the best way it felt appropriate in the situation. In the process, it did advance the cause of justice and ensured proper implementation of rule of law. However, from the perspective of the legislature, it was usurpation of its powers and functions. The executive argued that the court was in effect running the government the way it considered desirable. Both raised the issue of judicial accountability, the demise of the doctrine of separation of powers, and the negation of checks and balances in the constitutional scheme. The judiciary defended itself by saying that the Court acted only in areas where there was legislative vacuum in the field of human rights and its action only strengthened democracy and the common man’s faith in rule of law (Justice A.S. Anand, Millennium Lecture, reproduced in Law & Justice, edited by Soli Sorabjee, Universal 2004). Where does this discussion on judicial role in constitutional law making lead one in terms of parliamentary democracy, democratic accountability and constitutional governance? The answer depends on how one perceives the performance of the executive and legislative wings of the state and what constitutes public interest in the given situation. It is difficult to resolve this question in terms of the original intent of constitution makers or the presumed will of we, the people of India. Nor can it be addressed by textbook definitions of democracy, rule of law and constitutional

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governance. Accountability, of course, is a key issue. Concentration of power in any one institution is inimical to democratic accountability and good governance. There is need for restraint and development of healthy constitutional conventions and practices. In the present context, judicial appointments, judicial independence and judicial accountability are issues that warrant informed and responsible debate if parliamentary government is to remain the central theme of Indian democracy. The problems are not peculiar to India either. In 1998 a joint colloquium was sponsored in London by the Commonwealth Parliamentary Association, Commonwealth Lawyers’ Association and Commonwealth Judges’ Association on ‘Parliamentary Supremacy and Judicial Independence’, which adopted a set of ‘Guidelines on Good Practice Governing Relations between the Executive, Parliament and the Judiciary in the Promotion of Good Governance, the Rule of Law and Human Rights’. In relation to Parliament and judiciary, the following guideline was adopted, which speaks of the delicate balance and the restraint and responsibility each institution must demonstrate in the exercise of power within its own constitutional sphere so as not to encroach on the legitimate discharge of constitutional functions by other institutions. The guideline stated: The legislative function is the primary responsibility of parliament as the elected body representing the people. Judges may be constructive and purposive in the interpretation of legislation, but must not usurp parliament’s legislative function. Courts should have the power to declare legislation to be unconstitutional and of no legal effect. However, there may be circumstances where the appropriate remedy would be for the court to declare the incompatibility of a statute with the Constitution, leaving it to the legislature to take remedial measures. In conclusion, it is worthwhile to recall the views of Justice Pierre Olivier of South Africa. He was highly critical of the Westminster model of parliamentary sovereignty, which proved powerless to protect the people of apartheid South Africa from unjust laws passed by a parliament that was a rubber stamp of a tyrannical executive. Justice Olivier painted a vivid picture of the

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intolerable position in which South African judges were placed in having to apply oppressive laws in relation to which the possibility of judicial review was carefully excluded. Even judicial review of executive action was emasculated by laws conferring draconian powers upon the executive. Does this description of the erstwhile South African model of parliamentary supremacy strike any parallel with the state of Parliament during the Emergency period in India? If so, there is reason to let the ‘basic structure’ doctrine remain in Indian constitutional law despite the threat of ‘judicial activism’ upsetting the democratic balance of power. The issue cannot be resolved by declaring that in India the Constitution is supreme. This is because of the vastness of the power of judicial review the courts have assumed, and the limitations on the amending power of Parliament, again developed through judicial interpretation. The proposition that ‘the Constitution is what the judges say it is’ cannot be accepted under any democratic scheme of governance, particularly when there is no clarity or certainty as to the nature, number and scope of unamendable basic features of the Constitution. In the circumstances, the available options are a national debate on the issue and possibly a referendum on the scope and procedure of amendment of so-called basic features; and/or a review of the whole situation by the full court of 26 judges of the Supreme Court after issuing notices to all stakeholders.

2 THE CONSTITUTION, PARLIAMENT THE JUDICIARY

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P.P. Rao

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he Indian Constitution, like others, has been written to endure for ages both as a legal and a political document. Leading figures in both fields joined hands to write it, after considering constitutions of many countries which were painstakingly collected and studied by Sir B.N. Rao, the constitutional adviser to the Constituent Assembly. The Drafting Committee included legal experts of great eminence, and its chairman, Dr B.R. Ambedkar, was one of the most eminent among them. He piloted the Draft Constitution with extraordinary ability and skill through the Constituent Assembly. The president of the Assembly, Dr Rajendra Prasad, was another lawyer of great eminence. Though not elected on the basis of adult franchise, the Constituent Assembly had among its ranks not only well-known political leaders representing different sections of the people, but also some of the most eminent educationists and representatives of other interests. Between them its leading members enjoyed the widest support, popularity and respect in the country. Dr Sachidananda Sinha, the temporary chairman of the Assembly, in his inaugural address recalled the words of Joseph Story about the American Constitution: The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful, as well as useful; its arrangements are full of wisdom

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and order; and its defences are impregnable. It has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. In the concluding session of the Assembly, Dr Rajendra Prasad said: We have prepared a democratic Constitution. But successful working of democratic institutions requires in those who have to work them willingness to respect the viewpoints of others, capacity for compromise and accommodation. Many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions. . . . Whatever the Constitution may or may not provide, the welfare of the country will depend upon the men who administer it. . . . [A] country can have only the government it deserves. In the same session, Dr B.R. Ambedkar expressed his apprehension about the future of democracy: On the 26th of January 1950, India would be a democratic country in the sense that India from that day would have a government of the people, by the people and for the people. . . . What would happen to her democratic Constitution? Will she be able to maintain it or will she lose it again? To what extent have these hopes borne fruit? To what extent have they been overshadowed by apprehensions? Before answering these questions it is necessary to note some of the developments that have taken place during the last 50-odd years. The Constitution provides for separation of powers, between the executive, the legislature and judiciary. The Union Parliament and the legislatures of the states make laws within their respective spheres, earmarked for them in the Seventh Schedule to the Constitution. The procedure for amendment of the Constitution has been outlined in Article 368. The Constitution can be amended by Parliament by a majority of the total membership of each House and a majority of not less than two-thirds of those present and

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voting. An amendment of the provisions of the Constitution that are mentioned in the provisos to Article 368 requires additional ratification by the legislatures of not less than one-half of the states. From time to time the Constitution needs to be adapted so as to meet new situations and to tackle new problems. The task of interpreting the Constitution has been entrusted to the judiciary, which is independent of legislature and the executive, and in retrospect it appears that the Supreme Court has, by and large, tried to discharge this function, keeping in view the philosophy of the Constitution, its aims and objects and the values enshrined therein, notwithstanding errors of interpretation committed at times. Some of the errors were corrected by the Court itself in subsequent decisions and a few others were overcome by constitutional amendments made by Parliament. The strength of the judiciary lies in its transparency, and its readiness and willingness to correct its mistakes. For instance, in the case of State of Madras vs Champakam Dorairajan (AIR 1951 SC 226 = [1951] SCR 525), the Court needlessly declared that the Directive Principles of State Policy, which by Article 37 have been made unenforceable by a court, could not override Fundamental Rights, which have been expressly made enforceable by appropriate writs, orders and directions under Article 32. This declaration of law stood in the way of implementation of some of the vital provisions of Part IV of the Constitution. It took more than two decades for the Court to realize its error and to correct it. According to the revised interpretation, the Directive Principles of State Policy and the Fundamental Rights are both fundamental and both need to be given effect to.1 While interpreting the provisions relating to Fundamental Rights, the courts are bound to keep the Directive Principles in mind.2 Similarly, the Fundamental Right to Property, that is, to acquire, hold and dispose of property conferred by Articles 19(1)(f) and 31 was interpreted in a manner which frustrated land reforms like the Zamindari Abolition Acts passed by various state legislatures. Parliament had to step in to overcome the judicial hurdle. It inserted Articles 31-A and 31-B in the Constitution under the First Amendment, and also amended Article 31 and the Ninth Schedule repeatedly to save several Acts. Finally, by the Constitution (44th

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Amendment) Act, 1978, Articles 19(1)(f) and 31 were omitted from the Constitution altogether. The result is that Right to Property has ceased to be a Fundamental Right.

PARLIAMENT RENDERED HELPLESS Even with regard to the power to amend the Constitution, initially the Supreme Court took the view that the power was unfettered and any part of the Constitution could be amended by Parliament or by Parliament and the state legislatures acting together in terms of Article 368.3 However, in I.C. Golak Nath vs State of Punjab (AIR 1967 SC 1643 = [1967]2 SCR 762), a Bench of 11 judges overruled the earlier Constitution Bench judgments and declared that an amendment to the Constitution made under Article 368 was ‘law’ within the meaning of Article 13, and it could not take away or abridge the provisions of Part III, namely, Fundamental Rights. This declaration was given prospective effect, with the result that the amendments already made, including the amendment impugned by I.C. Golak Nath, remained intact. Reacting to this decision, Parliament amended Article 368 by the Constitution (24th Amendment) Act, 1971, asserting the constituent power of Parliament to amend, by way of addition, variation or repeal, any provision of the Constitution in accordance with the procedure laid down therein, notwithstanding anything in the Constitution. This amendment did not deter the Supreme Court from declaring in Keshavananda Bharati vs State of Kerala (AIR 1973 SC 1461 = [1973] Supp. SCR 1), that the basic structure of the Constitution could not be abridged or abrogated by an amendment to the Constitution because ‘to amend’ means to modify or change, but not to destroy. This theory of basic structure propounded by a Bench of 13 judges is holding the field now. The proposition is without precedent in constitutional law. The Constituent Assembly debates give no indication of such a theory. Prior to Keshavananda Bharati, the Constitution, with all its checks and balances, was considered supreme. The Supreme Court has since emerged as the strongest wing of the state with unlimited and illimitable power. It is not easy to overcome this interpretation of the Constitution through

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the mechanism of amendment under Article 368. Parliament has been rendered helpless. Following the decision in the Keshavananda Bharati case, the Supreme Court has struck down several Constitution Amendments, testing them on the anvil of basic structure. In Indira Nehru Gandhi’s election appeal4, the Court struck down the 39th Amendment as unconstitutional as it tried to impart validity to her election after it was set aside by the Allahabad High Court, while her appeal was pending before the Supreme Court, by taking away the election dispute from the purview of the judiciary altogether. Parliament went too far. The impugned amendment was a blow to the rule of law, which is the bedrock of the Constitution. The theory of basic structure was justifiably invoked by the Court. But for the theory of basic structure, the Court would have been powerless to declare the 39th Amendment unconstitutional. In Minerva Mills Ltd vs Union of India5, the Court declared that Parliament cannot in exercise of its limited power of amendment contained in Article 368 enlarge the very power into an absolute power. Four judges declared that Section 4 of the 42nd Amendment Act, 1976, unconstitutional on the grounds that it circumvented Article 32 by withdrawing totally the protection of Articles 14 and 19 of the Constitution, which conferred rights essential for the proper and effective functioning of a democracy in respect of large categories of laws that purported to give effect to the Directive Principles of State Policy. The fifth judge, P.N. Bhagwati, J., disagreed with them and declared that Section 4, by giving primacy to Directive Principles over Fundamental Rights, did not damage or destroy the basic structure of the Constitution, and the amended Article 31-C was valid. In Sanjeev Coke Mfg Co. vs Bharat Coking Mills Ltd.6, another Constitution Bench doubted the correctness of the majority view in the Minerva Mills case, observing that the majority view was inconsistent with the reasoning in Keshavananda Bharati. Minerva Mills remains good law to this day as the same has not been overruled by a larger Bench. In Kihoto Hollohan vs Zachillhu7 the Supreme Court held that para 7 of the 10th Schedule to the Constitution, which excluded judicial review of the decision of the Speaker/Chairman of the House on the question of disqualification of MLAs/MPs offended the basic structure of the Constitution. As a result, the decisions given by the presiding

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officers of the legislature are subject to judicial review. This again is a salutary decision considering the inability of many presiding officers to decide the questions of disqualification dispassionately, uninfluenced by the party in power. These decisions illustrate that the theory of basic structure has served us well. It helps protect the core of the Constitution from the onslaughts of Parliament. However, there is no way out of judicial errors. In L. Chandra Kumar vs Union of India8 the Supreme Court declared that the power of judicial review over legislative action vested in High Courts by Articles 226 and 227 and in the Supreme Court by Article 32 is an integral and essential feature of the Constitution and part of its basic structure. Consequently, clause (2)(d) of Article 323-A and clause (3)(d) of Article 323-B, to the extent they excluded jurisdiction of the High Courts and the Supreme Court under Articles 226, 227 and 32 with respect to matters falling within the jurisdiction of tribunals constituted under Articles 323-A and 323-B, were found to be violative of the basic feature of judicial review, and struck down. However, the Supreme Court, instead of restoring status quo ante and thereby reviving the jurisdiction of the High Courts under Articles 226 and 227 to entertain petitions directly in matters over which the tribunals had jurisdiction, placed a fetter on the resurrected jurisdiction of the High Courts by laying down that: The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. This postscript raises a serious question for consideration. While striking down a part of the Constitution (42nd Amendment) Act, passed by Parliament as violative of the basic structure of the Constitution, how could the Supreme Court itself restrict the revived jurisdiction of the High Courts under Articles 226 and 227 by creating a bar to their entertaining writ petitions directly in matters falling under the jurisdiction of the tribunals? What

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Parliament cannot do under Article 368 can the judiciary do with respect to the basic structure of the Constitution? In other words, can the Supreme Court restructure the basic structure? In fact, there was no need for the earlier mentioned postscript at all, because it is a settled principle of law that if there is an adequate and equally efficacious alternative remedy, High Courts will not ordinarily entertain a writ petition and instead relegate the petitioner to the alternative remedy. Therefore, the question to be considered is, in the rare event of the judiciary committing a serious error in striking down an amendment of the Constitution applying the doctrine of basic structure in a given case, who can correct it, when and how? The basic structure is what the Supreme Court says it is. Parliament is bound by the law declared by the Supreme Court. Therefore, Parliament cannot overcome a decision of the Supreme Court declaring a constitutional amendment ultra vires the basic structure of the Constitution. The Court alone has the power to correct its errors. Correction of judicial errors requires constitution of larger Benches. Experience shows that it takes a long time for the Court to appreciate its error and correct it. There is a feeling in some quarters that Parliament can get over the theory of basic structure by convoking another Constituent Assembly by law. In the Golak Nath case, Justice Hidayatullah had observed: Parliament must amend Art. 368 to convoke another Constituent Assembly, pass a law under item 97 of the First List of Schedule VII to call a Constituent Assembly and then that assembly may be able to abridge or take away the Fundamental Rights if desired. It cannot be done otherwise. I am of the firm view that such a course is not permissible. There is no provision in the Constitution that permits creation of a Constituent Assembly to revise it or to redraft its provisions constituting the basic structure. Entry 97 of the Union List confers residuary power of legislation with respect to matters not enumerated in any of the three lists in Schedule VII. The power of legislation for facilitating amendment of the Constitution so as to abridge its basic structure cannot be located in Entry 97 at all. What

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an amendment of the Constitution made under Article 368 cannot do, obviously a law made under Entry 97 cannot accomplish. Parliament’s assertion of its unlimited right to amend any provision of the Constitution in exercise of its constitutional power through the Constitution (24th Amendment) Act, 1971, as the present wording of Article 368 reads, stands frustrated by the theory of basic structure in Keshavananda Bharati and the categorical declaration in Minerva Mills. What cannot be done directly cannot be achieved indirectly is a well-known proposition of law. It follows that error, if any, committed by the Supreme Court while applying the theory of basic structure can be corrected only by the Supreme Court. But self-correction takes a long time. No one can be sure that it will be corrected at all. By propounding the theory of basic structure, the Court has assumed a larger role as sole guardian of the Constitution and taken upon its shoulders enormous responsibility for discharging which statesmen like judges with vision, exceptional ability and integrity are needed. Interpretation of the Constitution is not a routine matter like the interpretation of a rent control Act. Chief Justice S.P. Bharucha, while addressing a Conference of Advocates General in Simla, observed that there had been a decline in the quality of judges. The judiciary has secured for itself a decisive voice in the appointment of judges by its controversial decision in Supreme Court Advocateson-Record vs Union of India.9 It is now fairly clear what a difficult task it is for the Chief Justice of India and the few seniormost judges of the Supreme Court constituting the collegium to select the most suitable candidates for elevation to the highest court. In the absence of transparency about the selection process, doubts are expressed about some of the selections made. Past experience does not show that the hope expressed by the president of the Constituent Assembly has borne fruit. The apprehensions voiced by Dr B.R. Ambedkar on the floor of the Constituent Assembly in 1949 are today entertained by many more citizens who are somewhat disillusioned and are seriously concerned about the future of parliamentary democracy in the country. Present-day political groupings do not permit Parliament to function regularly, much less effectively. For example, allowing the budget to be passed without any debate is a serious matter. If Members of Parliament are mainly interested in settling political

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scores with their rivals in the two Houses of Parliament and outside, and are not much concerned about the problems of the people that warrant concerted action on the part of all constitutional authorities, if the electoral process continues to be dominated by money power, muscle power, caste and communal factors, if criminalization of politics has already crossed limits of tolerance, and if the checks and balances provided in the Constitution have by and large collapsed or ceased to be effective, it would be difficult to work the Constitution in the manner visualized by the founding fathers. The situation calls for serious introspection and decisive action to save the institutions that are out of shape and to make the Constitution work better. Radical electoral reforms to revitalize Parliament and state legislatures so as to make parliamentary democracy a success, and judicial and administrative reforms to ensure that the institutions function strictly within the constitutional bounds, with greater transparency, accountability and efficacy, are the need of the hour.

NOTES 01. State of Kerala vs N.M. Thomas ([1976] 1 SCR 906, 976–79 = [1976] 2 SCC 310, 367 pr. 134 = AIR 1976 SC 490, 534 pr. 159). 02. U.P. State Electricity Board vs Hari Shankar Jain ([1978] 4 SCC 16, 24 pr. 5 = [1979] 1 SCR 355 = AIR 1979 SC 65). 03. Shankari Prasad vs Union of India ([1952] SCR 89 = AIR 1951 SC 458); Sajjan Singh vs State of Rajasthan ([1965] 1 SCR 933 = AIR 1965 SC 845). 04. Indira Nehru Gandhi vs Raj Narain ([1975] Supp. SCC 1). 05. (1980) 3 SCC 625. 06. (1993) 1 SCC 147. 07. (1992) Supp. 3 SCC 651, at p. 715 pr. 12. 08. (1997) 3 SCC 261. 09. (1993) 4 SCC 441.

3 THE ‘DOCTRINE’ VERSUS ‘MAJORITARIANISM’ Fali Nariman

PRELIMINARY QUESTIONS

I

n inviting my views on the possibility of a conflict between the Supreme Court and the Constitution over the doctrine of basic structure, the convener also addressed a few specific questions to me besides sending me his background paper. I will answer these questions first before explaining the views I have held for long on the theory of basic structure, and have had occasion to express before, regarding the need for a basic structure doctrine, about constitutional interpretations by the Supreme Court, and more particularly regarding the Gopalan case. Q. 1 (a) By virtue of Article 368, and more so the 24th Amendment of 1971, the Constitution had clearly placed the amending power in the basket of the constituent role of Parliament, subject only to the provisos to the Article. This was before any majoritarian provocations by the Congress of the kind now apprehended to flow from the BJP, and before the quality of parliamentary debate had sunk to its present levels. Was concern over property rights the main justification for the Keshavananda case judgment (23 April 1973)? (b) Or were there also any additional reasons and rationale at that time also? Answer: (a) Yes, that is correct—perhaps there would have been no such doctrine ‘invented’ but for the battle over Article 19(1)(f) and Article 31. (b) I do not think there were any additional reasons but if you closely read the judgments in earlier cases

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of Shankari Prasad and Sajjan Singh (especially the opinions of Justices Mudholkar and Hidayatullah), you will see that the doctrine of implied limitation on constitutional power is itself a doctrine evolved by courts around the world when interpreting a written constitution. Q. 2 What can the Supreme Court do under the ‘doctrine of basic features’ that it cannot do within the normal ambit of ‘interpretation’ of the Constitution, or under amendments of the kind that it may need and upon which there appears to be no bar so long as they can get the kind of majorities specified in Article 368? Answer: If there were no doctrine of basic features, after a wholesale amendment to the Constitution providing for, say, a dictatorial or monarchical form of government, there would be no role for the Supreme Court; if there were no basic features doctrine a majoritarian government could well dispense with the Supreme Court as ‘interpreter’ of the Constitution. This has happened in Sri Lanka where under its Constitution a law enacted by its Parliament cannot be challenged in court at all on the grounds of violation of the Constitution; a challenge is only possible when the Bill is introduced, and if the Supreme Court of Sri Lanka delivers an opinion that it is unconstitutional within 30 days of its introduction! With a wholesale amendment of the Constitution by Parliament, there would be nothing left for the Supreme Court to interpret. Q. 3 Would it not be better to apply the main features of the ‘doctrine’ through legitimate amendments to the Constitution along the lines of Articles 14, 18, 19, 21 and 22 by winning the required support for them (or until it is won) instead of bringing them in by the backdoor of the ‘doctrine’ on the assumption that the required support might not be available? Answer: Yes, theoretically it would. The basic trouble is when we gave ourselves independence we forgot to make ourselves educated. That is why the Constitution provided—in Article 45— that the state must endeavour to provide ‘within a period of 10 years from the commencement of the Constitution’ for free and compulsory education for all children until the age of 14 years. After 58 years of independence we still do not have an educated and enlightened electorate. So to characterize the ‘doctrine’ as a

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‘back door’ one is a good pejorative impression that does not do credit to the more enlightened decisions of the Supreme Court, especially after the phoney Emergency of June 1975 was revoked. There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense. And judges would not have embarked on ‘innovative’ interpretations if they knew they had to have parliamentary backing for their decisions. Q. 4 Was ‘due process’ rejected by the Constituent Assembly, and if it was, would not Q. 3 apply to its importation though incremental ‘interpretations’ that in the circumstances would be more like interpolations? Answer: Yes, due process was definitely rejected by the Constituent Assembly, but the question harks back to the doctrine of original intent. Now to my own paper.

THE BASIC STRUCTURE

AS

SAFEGUARD

Many years ago, when Felix Frankfurter was a professor at Harvard, he had warned against relying on judges and the courts to save freedoms. But in a modern state enormous powers are concentrated in the hands of the executive, and in a parliamentary system of government the legislature too often functions merely as its extended arm. Where else then are we to look for saving freedoms except to the courts? During the past 58 years since independence, the citizens of India have relied overwhelmingly on a single institution to set limits on state power—the Supreme Court. Under the Constitution of India, 1950, courts are empowered to invalidate legislative enactments and executive orders that violate any part of the Fundamental Rights guaranteed in Part III of the Constitution (Part III is our Bill of Rights). But are they empowered to adjudicate on the validity of constitutional amendments? On this great question, the Constitution is silent. With one single political party almost consistently returned to power at each election since 1951—and returned with a two-thirds majority— the judges have plumbed the depths of silence in one of the world’s longest constitutions searching for some limitations on the amending power.

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Judicial review of constitutional amendments had its genesis in cases arising out of property rights. This is what at first gave it a bad name. In the Constitution of India the right to property was recognized in Part III as a Fundamental Right (Article 19[f]) and no property could be acquired except for a public purpose and on payment of ‘compensation’ (Article 31) an expression which, in the early days of the Court, was judicially construed to mean a just equivalent. The subordination of legislative and executive action to Fundamental Rights is secured by Article 13 of the Constitution—it provides that the state (that is, Parliament and state legislatures) shall not make any law that takes away or abridges any of the Fundamental Rights conferred in Part III. These rights are enforceable by moving the Supreme Court. Although supreme, the Constitution of India is not immutable. The power to amend any part of it is conferred by Article 368 on the same body that enacts laws at the Centre, that is, the Houses of Parliament—the House of the People (Lok Sabha) and the Council of States (the Rajya Sabha). Under the proviso to Article 368, amendments to certain Articles of the Constitution can only take effect if ratified by not less than one-half of the legislatures of the states. But Part III (the chapter on Fundamental Rights) was not mentioned in the amending provision, neither in its main part nor in the proviso. Within a year of the Constitution being brought into force, Parliament passed the Constitution (First Amendment) Act, 1951. It consisted of the same members who, sitting as a Constituent Assembly, had adopted the Constitution on 26 January 1950. The First Amendment dispensed with the payment of compensation for taking over large estates, mainly zamindaris. These large estates were permanently granted over a century ago to families loyal to the Mughal emperors or to the British Raj. The First Amendment introduced two new Articles in the Fundamental Rights chapter (Part III): Article 31A and Article 31B. The first provided that legislation for effectuating agrarian reforms was outside the pale of protection of Article 19(1)(f) (the Fundamental Right to Property) and the acquisition of such property as part of a measure for agrarian reform did not need to comply with the requirement of payment of compensation guaranteed under Article 31. Article 31B was an innovation—it provided that

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whatever enactment (whether of Parliament or of state legislatures) which by constitutional amendment was included in the Ninth Schedule to the Constitution, should be deemed never to be void and to have never become void because of any infringement of Fundamental Rights, any judgment to the contrary notwithstanding.

CHALLENGE

TO THE

FIRST AMENDMENT

It was the challenge to the First Amendment that raised for the first time the question whether Parliament could by a special majority and after following the requisite procedure prescribed in Article 368 amend the Constitution so as to abridge or take away any of the Fundamental Rights set out in Part III of the Constitution. In an unanimous opinion handed down in October 1951, a Bench of five justices of the Supreme Court (in Shankari Prasad vs Union of India) unhesitatingly answered the question in the affirmative. With further constitutional amendments making more inroads into Fundamental Rights (the Fourth Amendment of 1955 and the 17th Amendment of 1964), the question of judicial review of constitutional amendments was attempted to be reopened. In October 1964 in Sajjan Singh vs State of Rajasthan, a Bench of five judges of the Supreme Court (on this occasion not unanimously but by a majority of 3:2) reiterated that Parliament could by constitutional amendments abridge or take away Fundamental Rights conferred by Part III. The majority in Sajjan Singh also suggested to Parliament to include the provisions of Part III (the Bill of Rights) in the proviso to Article 368. Then amendments to any of the Fundamental Rights could be effectuated more democratically, both Houses of Parliament passing the Amending Act with the requisite special majority and at least one-half of the state legislatures ratifying such amendments. The suggestion was ignored. The strong reservations of the minority in Sajjan Singh’s case prompted Chief Justice Subba Rao to constitute a larger Bench (in fact a full court of 11 judges) to reconsider the constitutional validity of the First, Fourth and 17th Amendments to the Constitution. Golak Nath vs State of Punjab (AIR 1967 SC 1643) became

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a landmark decision. It also gave rise to an acute controversy between the legislative and judicial branches of the state. Chief Justice Marshall once said: ‘Never seek to enlarge judicial power beyond its proper boundary, nor fear to carry it to the fullest extent that duty requires.’ Inspired by the second part of the dictum, and by his own conception of the pre-eminence of Fundamental Rights, Chief Justice Subba Rao (in Golak Nath) carried judicial review to the fullest extent—almost to breaking point! Many people regretted that the great judge did not pay heed to the first part of Marshall’s dictum. In Golak Nath it was held by a narrow majority (6:5) that constitutional amendments were ‘laws’ under Article 13 of the Constitution and as such subject to the mandate of that Article: the state could not abridge or take away Fundamental Rights by enacting laws, whether in exercise of legislative power or in exercise of constituent power. The First, Fourth and 17th Amendments were declared invalid, but only prospectively, Part III of the Constitution (Bill of Rights chapter) was placed on a pedestal beyond the reach of the amending power. At first the reaction to Golak Nath—especially in the halls of the legislatures—was one of stunned surprise. The pace of constitutional amendments slowed down. But as the implications of the judgment became more widely known and more openly criticized, the attitude of the elected representatives of the people changed from a state of initial shock to one of defiance. In 1971 Parliament passed in quick succession the 24th, 25th and 29th Constitutional Amendment Acts. It was declared that the power of amendment was a constituent power and the provisions in Article 13 empowering courts to declare laws passed in contravention of Fundamental Rights void would not apply to laws enacted under the constituent power of amendment. Next, the Fundamental Right requiring payment of compensation for acquisition of property (Article 31[2]) was substituted and the new provision declared that property of any description, whether large or small, could be acquired for public purposes if the law provided for payment of an amount, and no such law could be called in question in any court on the grounds that the amount fixed or determined by the law was not adequate or that the whole or any part of such amount was given otherwise than in cash.

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AN ANGRY RESPONSE An angry response to what was believed to be a misuse of the power of judicial review also produced another piece of heavy artillery: Article 31C. That Article, also introduced by the 25th Amendment, provided that notwithstanding anything contained in Article 13, no law could be challenged that gave effect to the policy of the state towards securing two of the main objectives of state policy mentioned in Part IV of the Constitution, namely, towards securing that the ownership and control of the material resources of the community were distributed for the common good (Article 39[b]), or towards securing that the operation of the economic system did not result in the concentration of wealth and means of production to the common detriment (Article 39[c]). Any law giving effect to such policy was deemed not to be void on the grounds that the law took away or abridged Fundamental Rights conferred either by Article 14 (equality clause), or by Articles 19 or 31 (the property clauses). The Constitution (29th Amendment) Act, 1972, added further enactments in the Ninth Schedule, mainly Acts of state legislatures, so as to save them from challenge under Articles 14, 19 or 31 on the grounds of contravention of Fundamental Rights. The stage was now set for the grand challenge. If Golak Nath was rightly decided, the 24th, 25th and 29th Amendments were void. If not, the powers of Parliament (and the powers of future Parliaments) were severely curtailed. The full Court (then consisting of 13 justices) sat from 30 November 1972, hearing arguments on the correctness of the decision in Golak Nath, and as to whether there were any limitations on the power to amend the Constitution. The hearing lasted almost continuously till the third week of March 1973—a period of four months. As one of the justices put it: ‘The largest Bench sat for the longest time to decide issues of grave moment not only to the future of this country but to the future of democracy itself.’ The case was titled His Holiness Keshavananda Bharati vs State of Kerala (AIR 1973 SC 1461), but it is better known as Keshavananda or as the Fundamental Rights case. Almost at the start, the reasoning in Golak Nath was given up. What was pressed was that there had to be some limitations on the amending power. The debate

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centred on the extent of such limitations. No unanimity could be reached. The Court was once again sharply divided except on the decision that Golak Nath should be overruled. Six judges (Justices Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud) held that the power of amendment conferred by Article 368 was wide and unfettered: it reached every part and provision of the Constitution including the chapter on Fundamental Rights, and that there were no inherent limitations on the amending power. Six other justices (Chief Justice Sikri and Justices Shelat, Hegde, Grover, Ray and Jaganmohan Reddy) held that the power of amendment was limited, but they were not all agreed on the extent of such limitation. The Court was thus evenly divided. It was Justice Khanna’s judgment that tilted the balance. He held that the power of amendment under Article 368 was plenary, that it included the power to amend various Articles of the Constitution and was not fettered by any provision in Part III (the Fundamental Rights chapter), that no Fundamental Right (only because it was a Fundamental Right) could claim immunity from the amending process, and that the power to amend included within itself the power to add, alter or repeal the various Articles of the Constitution. But he held (and this is now the ratio in the Fundamental Rights case) that the power to amend under Article 368, wide as it was, did not include the power to abrogate the Constitution or to alter its basic structure or framework. The opinions first in Golak Nath and then in Keshavananda were products of divided courts. They stimulated great controversy and dispute, but the basic structure theory has come to stay. Though innovated in disputes relating to property rights, it has long survived the deletion of the Right to Property from the Fundamental Rights chapter. After 1973 it was first applied in an election case. When Indira Gandhi lost the election petition filed against her in June 1975 in the Allahabad High Court, her advisers recommended a constitutional amendment. While her appeal was still pending in the Supreme Court, a Bill amending the Constitution was rushed through Parliament. The 39th Amendment Act, 1975, provided, among other things, that disputes regarding the election of a person who becomes Prime Minister were not to be decided in courts but by a special body named by Parliament. It also

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provided that election laws would not be applicable to the Prime Minister and would not be deemed ever to have been applicable to the Prime Minister, and that notwithstanding any order of any court the election of the Prime Minister would never be deemed to have become invalid or void—the election of the Prime Minister would continue to be valid in all respects. The 39th Amendment was an attempt to pre-empt the Supreme Court from deciding the election appeal of Indira Gandhi. The Court successfully resisted the attempt, relying for the first time after the Fundamental Rights case on the basic structure theory. In Indira Nehru Gandhi vs Raj Narain (AIR 1975 SC 2299), the Court established that judicial review and free and fair elections were a fundamental part of the Constitution, beyond the reach of the amending power.

CHALLENGE

TO THE

42ND AMENDMENT

In 1980 the Court applied the doctrine of basic structure in a challenge to the 42nd Amendment. Constitutional amendments passed in 1976 shut out all judicial review of constitutional amendments. No amendment to the Constitution made in accordance with the procedure in Article 368 could be called in question in any court on any grounds whatever. In the Minerva Mills case (AIR 1980 SC 1789), the Court unanimously declared that the exclusion of judicial review violated the basic structure of the Constitution and it struck down this part of the 42nd Amendment. Similarly a constitutional amendment (the 32nd) which provided for the decision of an administrative tribunal in the state of Andhra Pradesh becoming final and effective only upon its confirmation by the state government was declared violative of the basic structure (P. Sambamoorthy vs State of Andhra Pradesh [AIR 1987 SC 663]). The Court has also unanimously taken the view that after 24 April 1973 (the date of its opinion in the Fundamental Rights case) Parliament cannot, even as a constituent body, add any central or state enactment in the Ninth Schedule so as to render it immune from challenge for infringement of Fundamental Rights guaranteed under Article 14 or 19. The constitutional expedient of the Ninth Schedule devised at the time of the First Amendment to the Constitution has now become effete.

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The power to declare the law, said a great American judge, carries with it the power, and within limits the duty, to make law where none exists. In reading implied limitations in the amending power, the Supreme Court of India has made a new law. Assumption of power by which one organ of government is enabled to control another has been characterized as political power. In asserting the basic structure theory, the Supreme Court of India has, in this sense, asserted political power in the guise of judicial interpretation. That is why there are so many critics of the basic structure theory. By propounding it, the guardians of the Constitution have at one bound become guardians over the Constitution. Constitutional adjudicators had assumed the role of constitutional governors. The criticism is valid. But equally valid is the fact that Parliament in its wisdom has not sought any confrontation. If it had, the casualty would have been the Supreme Court. When the Janata government endeavoured to recast Article 368 (the amending clause) and introduced provisions for a referendum for effecting changes in the basic features of the Constitution, the attempt failed. The 45th Amendment Bill could not secure the requisite two-thirds majority in the Rajya Sabha owing to the opposition of the Congress(I)! (See Appendix.) Parliament has also not chosen to reenact afresh a constitutional amendment containing an ouster of jurisdictional clause in Article 368 after an earlier attempt at such an enactment (the 42nd Amendment) was struck down by the Court in 1980. As a matter of fact, five years after the basic structure theory was first propounded in the Fundamental Rights case, Parliament gave implicit recognition to it. In the Constitution (44th Amendment) Act, 1978, it provided that the Fundamental Rights of Life and Liberty guaranteed by Article 21 could never be suspended even during an emergency because the right to life and liberty was basic to the constitutional framework. In July 1986, just before his retirement, the Chief Justice of the US Supreme Court, Justice Warren Burger, was interviewed on television by Bill Moyers. He said: ‘Congress can review us and change us when we decide a statutory question, and frequently do. But when we decide a constitutional issue, right or wrong, that’s it until we change it, or the people change it. Don’t forget that. The people made it, and the people can change it. The people could abolish the Supreme Court entirely.’

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‘How?’ asked Bill Moyers. The answer: ‘By a constitutional amendment.’ He was right. If the people really willed it, they could. But no one in the United States is going to abolish the Supreme Court, and one can predict with equal confidence that judicial review even over constitutional amendments will remain a part of Indian constitutional practice. Undoubtedly, primary control on governmental activity in this as in any other country is with the people. The power the Supreme Court of India exercises rests ultimately upon their tacit approval. But experience has taught us to take (what Madison once described as) ‘auxiliary precautions’. The basic structure theory was the response of an anxious and activist Court to the experience of the working of the Indian Constitution during the first 20 years. It remains today as an auxiliary precaution against a possible tidal wave in the vast ocean of Indian democracy.

APPENDIX (Extract from Bill No. 33 of 1979: The Gazette of India Extraordinary Part II, S-II, pp. 387, 388) In Article 368 of the Constitution, (a) In clause (2), after the proviso, the following proviso shall be inserted, namely: ‘Provided further that if such amendment— (a) Seeks to make any change which, if made, would have the effect of— (i) Impairing the secular or democratic character of this Constitution; or (ii) Abridging or taking away the rights of citizens under Part III; or (iii) Prejudicing or impeding free and fair elections to the House of the people or the legislative assemblies of state on the basis of adult suffrage; or (iv) Compromising the independence of the judiciary; or (b) Seeks to amend this proviso the amendment shall also require to be approved by the people of India at a referendum under clause (4)’.

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The theme paper (referred to earlier) is interesting and instructive, but it is reminiscent of what has been characterized (in the United States) as the Doctrine of Original Intent: that is to say, that the Constitution should be interpreted according to the true intent of the Founders. Of course, the original intent of the framers of the Constitution was that if the forms were complied with the concerned amendment to the Constitution would be beyond judicial review. There is no doubt about that. But the doctrine of Original Intent has never been part of the doctrine of constitutional interpretation in India. Just two examples.

First Example Article 21 of our Constitution reads as follows: ‘Protection of Life and Liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law.’ As mentioned in Gopalan’s case (1950 SCR 88), the Supreme Court (a strong court consisting of C.J. Kania and Justices Fazl Ali, Patanjali Sastri, Mahajan, B.K. Mukherjea and S.R. Das) upheld the validity of a preConstitution preventive detention law on the grounds that once the deprivation was supported by law, Article 21 could not be said to be infringed. One of the judges expressly referred to the debates in the Constituent Assembly (which was very recent legislative history) to indicate that the American Due Process model had been expressly rejected by the framers of the Constitution (1950 SCR 88 at 110–111; Chief Justice Kania). Yet 28 years after Gopalan, a later Constitution Bench of the Supreme Court (in the Menaka Gandhi [sic] case [AIR 1978 SC 597]) held that the State could deprive any person of his life or liberty under Article 21 not only because a law so empowered it; that law had also to meet the test of being non-arbitrary, non-discriminatory and hence not violative of Article 14. Due process, which was expressly rejected by the framers of the Constitution, was in substance reintroduced in Menaka Gandhi when interpreting the life and liberty clause of the Constitution. The decision is illustrative of the saying that a written Constitution is a ‘living document’ and must receive its interpretation not according to the intent of those who framed it but according to ‘the felt necessities of the times’.

Second Example Article 124(2) of the Constitution of India provides: Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: ‘Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:

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‘Provided further that: (a) A Judge may, by writing under his hand addressed to the President, resign his office; (b) A Judge may be removed from his office in the manner provided in clause (4).’

The ‘President’ in the Constitution means the President acting with the aid and advice of his council of ministers, and not on his own—which in effect means that on a textural interpretation of Article 124(2), the judges of the Supreme Court and of the High Courts are to be appointed by the government of the day ‘after consultation with’ such of the judges of the Supreme Court and of the High Courts of the states as the government feels necessary for the purpose. And ‘consultation’ does not mean ‘concurrence’. That was the understanding of the framers of the Constitution and those who worked it for 20 long years. But then came the central government’s resolve to appoint judges to the higher judiciary who had a ‘commitment’—not to the Constitution but to the policies of the government—a line advocated very strongly by the late Kumaramangalam, a senior minister in Indira Gandhi’s cabinet. This led to a preferred class of judges—the so-called ‘forward looking’ ones—who were preferred for appointment to the High Courts and Supreme Court. The ones that were not so ‘committed’ (or who were committed only to the law) were left out. It was in this background that a large Bench (Bench of nine judges) of the Supreme Court of India re-read Article 124(2) by a process of reinterpretation—virtually making the recommendation or advice of the Chief Justice and judges mandatory on the Government (see Supreme Court Advocates-on-record Association vs Union of India— AIR 1994 S.C. 268). The doctrine of Original Intent, which even today has few adherents in the United States, has been effectively buried in India. In my opinion it must be allowed to lie buried.

The Changing Role of the Supreme Court India’s Constitution was brought into force on 26 January 1950. The Constituent Assembly (which became India’s Provisional

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Parliament) passed free India’s first Preventive Detention Act (1950), only a month later, on 26 February 1950. Under its provisions: (a) courts were expressly forbidden from questioning the necessity for any detention order passed by the government; (b) no evidence could be given in any court either by the detenue or the authority of the grounds of detention, nor could the court compel their disclosure; and (c) courts could not enquire into the truth of factors placed by the executive as grounds for detaining an individual. A.K. Gopalan, a Communist detenue, challenged (in the Supreme Court of India, by a writ petition under Article 32) the constitutional validity of the Preventive Detention Act, 1950, principally on the grounds that it violated Article 21 (protection of life and liberty) and Article 19(1)(d) (right of citizens to move freely throughout India subject to reasonable restrictions imposed by law). The challenge was repelled by a constitution Bench (of five justices). The historical background against which Article 21 had (only recently) taken its final shape was determinative of the decision of the Court; the Attorney-General had reminded the judges that the Constituent Assembly had consciously rejected ‘due process’ in Article 21, and, therefore, the unreasonableness of the law of preventive detention could not be examined by the court. Whatever the procedure prescribed by enacted law (even if unfair or unreasonable), that in itself was sufficient justification for deprivation of life and liberty. The decision in the Gopalan case considerably inhibited judicial protection of human rights in the first two decades of the working of the Constitution. It took the Supreme Court more than 25 years to free itself from the shackles of Gopalan (which it ultimately did, in the Maneka Gandhi case [1978], under a constitutional Bench decision of seven judges). Until then, the Article did not mean much; the protection it afforded was only peripheral—every challenge to personal liberty under Article 21 could be successfully met by showing the terms of the enacted law. Its reasonableness, or the extent of its arbitrariness was irrelevant. Even with the limited protection it afforded (during the Gopalan period), ‘life’ and ‘liberty’ of all persons in India stood forfeited on the declaration of an emergency, as a consequence of the suspension of Article 21, a contingency contemplated by Article 359 (Proclamation of the Emergency). In ADM Jabalpur vs S.C.

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Shukla (AIR 1976 SC 1207) a decision taken during the phoney Emergency of June 1975, four out of the five most senior judges of the court held that Article 21 was the sole repository of constitutional protection of life and liberty, and accordingly an order of preventive detention issued at a time when Article 21 was under suspension (from June 1975) could not be challenged either in the high court or in the Supreme Court, nor could a writ of habeas corpus issue, neither on the grounds that the order was not in compliance with the law authorizing it, nor that it was illegal or vitiated by malafides (factual or legal) or based on extraneous consideration! The Supreme Court even went further: it held a few months later, in Union of India vs B.K. Gowda (AIR 1977 SC 1027), that during the period of suspension of Article 21, detainees could not complain of prison conditions or prison rules regulating conditions of their detention even if they were manifestly unfair or unreasonable. The basis of these unfortunate decisions was the courts’ conceptional (mis)understanding of ‘personal liberty’. ‘Liberty’, said Chief Justice Ray in ADM Jabalpur, ‘is itself a gift of the law and may by the law be forfeited or abridged’ (sic). Nine high courts in the country had during the same period (after the declaration of Emergency in June 1975), taken a bolder, more liberal view, but their decisions all stood overruled after the majority decision in ADM Jabalpur. Like the Supreme Court of the United States, after its 1857 decision in the Dred Scott case (holding that the Negro was ineligible to be a citizen since he was never a ‘person’), and again after its much later decision in Korematsu in 1944 (forcible evacuation from the Pacific Coast of all US citizens of Japanese origin, and their internment), the Supreme Court of India too (after its decision in ADM Jabalpur) has ‘suffered severely from self-inflicted wounds’. It was Parliament that helped restore judicial protection of rights guaranteed by Article 21; under the Constitution (44th Amendment) Act, 1978, suspension of Articles 20 and 21 was expressly prohibited (and remains prohibited) even during an emergency. The ghost of Gopalan was finally laid in Maneka Gandhi vs Union of India (AIR 1978 SC 597). A constitutional Bench of seven judges (overruling Gopalan) read into Article 21 a new dimension: it was not enough, said the Court, that the law prescribed some

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semblance of procedure for depriving a person of his life or personal liberty; the procedure prescribed by the law had to be reasonable, fair and just; if not, the law would be held void as violating the guarantee of Article 21. This fresh look at Article 21 has helped the apex court in its new role—as the institutional ombudsman of human rights in India. The decision in Maneka Gandhi became the starting point, the springboard, for a spectacular evolution of the law relating to judicial intervention in (individual) human rights cases.

4 THE COURT, THE CONSTITUTION AND THE PEOPLE Salman Khurshid

DOUBTFUL POWER

T

he Supreme Court’s power to review administrative or legislative Acts of governments for their vires (constitutionality) is explicitly given by the Constitution. But the power to review any amendments to the Constitution, except regarding compliance with the prescribed conditions for making amendments, is at best implicit and at worst a self-arrogated power. The British parliamentary supremacy doctrine flowed largely from there being an unwritten constitution. The traditional issue of concern was the conflict between the sovereign and Parliament, and seldom was it Parliament versus the citizen. The latter issue was deftly avoided by the courts by assuming separately that Parliament could not have intended to act in a manner detrimental to the interests of the citizen. In the United States of America, amendments like the Second and the Fifth were introduced to fortify the empowerment of the citizen as opposed to the state. Therefore, the question of the Supreme Court challenging amendments did no arise there either. In India amendments generally did the exact opposite—to truncate an existing right of the citizen (even if justified as an attempt to fortify another citizen’s right). Therefore, a judicial challenge to them was inevitable. The point is whether the Supreme Court’s creatively interpretative judgments that have expanded the ambit of Articles 14 and

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21 are constitutionally justified, and whether ‘due process’ and ‘reasonableness’ can also be added to the limits on the amending power of Parliament. The argument against this which is often propounded is the argument of democracy. The amending power has its validation in the democratic endorsement of the Constituent Assembly and the legislative power of Parliament is endorsed periodically by the mandate of the people. Judges on the other hand, it is argued, do not have that democratic mandate and are not accountable either. But the democratic argument, prima facie attractive as it might be, has several serious shortcomings. Most democratic electoral decisions are ultimately minority decisions, particularly as in our first-past-the-post elections. There is furthermore an unclear divide between voting preferences—the legitimate exercise of ‘I want to have this’ against ‘I want the others not to have this’. Finally, of course, there is the problem of extraneous influences and distortions in public choice. Judicial decision making can be better in all these aspects. We should not forget that the system of appeals, the procedure of listening to all sides and views, the prolonged training of the mind, and useful instruments like rules of interpretation and adherence to binding precedents make judicial decision making immune to irrelevant and extraneous considerations. Of course, nobody can claim infallibility, least of all judges. So in turn there are rules of departure from past decisions, such as, distinguishing the case at hand, and in some cases the doctrine of overruling precedents. The eventual issue really is what is it that grants special sanctity to the constituent power, or indeed as this conference calls it, the Constitution’s power. It is ultimately a psychological act at a critical time when circumstances and public consensus make such an act possible. A German professor of jurisprudence, Professor Hant Kelsen, called it the Grundnorm. When most, if not all persons behave in a particular manner with a conviction that they are bound to do so, a norm is established. The feeling of being bound raises a norm above the level of a mere habit. Since the validity of all norms in a constitutionally bound society has to be and can be traced to a source, such as the Constitution, that becomes the source of constitutional legitimacy. The Pakistan Supreme Court even justified martial law imposed by a military government that

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came to power through a coup by relying on the concept of Grundnorm, although it was referred to as the doctrine of necessity.

‘INSTITUTIONAL PREFERENCE’ The mistake that is sometimes made is to assume that a democratic decision is really what it appears to be. We have tried to argue that this is far from true. Thus, even if we can tell with a degree of certainty what the majority preference is at any given point of time, that may not necessarily be the institutional preference of the society. By ‘institutional preference’ I mean the preference that in the instant case is consistent with a series of preferences of society reflected in institutional decisions over a period of time. For example, a society whose institutional decisions support nonviolence and pacifism cannot suddenly legitimize the death sentence by a majority vote. Just as a democratic choice can be wrong, a judicial decision also can be wrong. But in neither case is that any reason for throwing the baby out with the bath water. If we do not get good judicial decisions, let us improve the quality of our judges, just as we continue to improve the process and procedures of elections. Our instinct for self-preservation and promotion, which is the basis of democratic theory, may not necessarily be better than our institutionalized reason and logic. At the end of the day we need to ask ourselves, what works best? There cannot be an a priori fundamental right or wrong about constitutionality. We need a starting point somewhere. Some people believe it is in Parliament, others believe it to be in the wisdom of judges. Ultimately it must come from the people because of our inherent belief that sovereignty resides with the people. But other competing beliefs rule other countries. In any case, the people cannot rule directly and need to appoint their representatives, who in turn must have the mandate to conduct themselves in a particular manner. It would be a mistake to assume that judges do not represent the people or do not function within a mandate given by the people. The issue of federalism is not affected by the present argument. In fact it is not even relevant. It is just another level of the

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relationship between an individual and society. The libertarian position, that the greatest good of the largest number is all that matters for the purpose of political sanctity, has a formidable and attractive challenge in the liberal thesis that people have rights that cannot be overlooked in the interest of the majority. What holds good for an individual would also hold good for a state in a federal set-up. The basic structure doctrine of the Supreme Court should not be seen as an interpolation that challenges the supremacy of the Constitution. It should also not be seen as an artificial construct based on the physical structure of the Constitution. It should be seen as an attempt to identify the moral philosophy on which the Constitution is based. Seen in that manner, the Supreme Court may well be able to isolate some parts of the Constitution, albeit small ones, as being inconsistent with rest. For reasons of propriety and mutual respect under the separation of powers doctrine, the Court will obviously strain hard to not have to do that explicitly. Thus, even if we can tell with a degree of certainty what the majority preference is at any given point of time, that may not necessarily be the institutional preference of the society.

5 THE ‘DOCTRINE’ VERSUS THE SOVEREIGNTY OF THE PEOPLE Subhash Kashyap

THE PURPOSE OF INTERPRETATION

U

nfortunately, there is a great deal of constitutional illiteracy in our country. Constitutional studies are not accorded the space they deserve in a democracy. Even in law schools and new law universities, too little focus is put on studying the text of the provisions of the Constitution—its background and its working—and too much attention is devoted to what is called ‘case law’ containing the gems of the wisdom of judges. Perhaps it is a professional necessity. Law schools have to produce lawyers who can stand in court and cite past decisions of their exalted lordships to show how they have improved upon and embellished the provisions made by the founding fathers. There is considerable myth and misunderstanding about the Constitution, and for much of it the courts are responsible. To really understand the Constitution, a student of India’s Constitution should, as a first step, read the words in the text of a constitutional provision carefully and try to understand their normal, natural meaning. In the Keshavananda Bharati case, the Supreme Court also said that unless otherwise indicated, every word is supposed to have been used in its normal or ordinary connotation and should be given the plain common sense meaning. Surprisingly, while interpreting the Constitution and the

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laws, the Supreme Court itself does not always seem to do that. The purpose of interpretation is to ascertain the intent of the framers from the words used. For this, we must go by what the Constitution says and not by what judges say it says. The need is to critically evaluate the interpretations made, including those by the judges. The doctrine of basic features of the Constitution is a relatively recent innovation in India. It is a judicial invention and a product of what is termed ‘creative jurisprudence’. Naturally, it makes a difficult and delicate theme to study. The constitution of a country is its foundational law and lays down the basic features of its polity. Every provision of a constitution is the basic law of the land. Its provisions can hardly be so divided as to make some parts of it more basic and others peripheral, or some more basic and others less so. A constitution determines the basic structure of the political system, establishes the organs of state, defines and delimits their jurisdictional realms and responsibilities, and regulates their relationships with each other and with the people. All the three organs—including the judiciary—are responsible to the people, who are the ultimate sovereigns. Each organ has to discharge its duties only within the domain assigned to it. Ultimately, no institution, however supreme, is above the people. Neither Parliament nor the apex court is sovereign except each in its own domain. None of the three can arrogate to itself a position superior to the collective sovereign will of the people, to which they are and must at all times remain totally responsible and accountable for the discharge of their duties. Every act of the executive, the legislature and the judiciary has to be tested on the touchstone of the Constitution and the weal of the people for its validity and legitimacy. In the British parliamentary system, Parliament is by tradition supposed to be supreme and sovereign. There are no limitations on its powers, at least in theory, inasmuch as there is no written constitution and the judiciary has no power of judicial review of legislation. In the US system the Supreme Court, with its power of judicial review and of interpreting the Constitution, has assumed supremacy; and virtually no limits are recognized on the scope of judicial review by it, and judicial pronouncements by it on the legality of legislation are final.

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In India the Constitution has arrived at a middle course and a compromise between the British concept of the sovereignty of Parliament and the supremacy of the judiciary in America with its powers of judicial review of legislation. But judicial review in India is conceived by the founding fathers as limited. If an Act of Parliament is set aside by the judiciary as ultra vires or violative of the Constitution, Parliament can reenact it after removing the defects for which it was set aside. Also, Parliament may, within the limits of its constituent powers, amend the Constitution in such a manner that the law no longer remains unconstitutional. In the Constituent Assembly there was considerable discussion on the desirability or otherwise of incorporating the ‘due process of law’ clause in the Constitution, and after due deliberation the Constituent Assembly decided against the American precedent and opted for the formulation ‘in accordance with procedure established by law’. However, the Supreme Court by its verdicts has practically brought the due process clause back into the Constitution. This goes against its basic scheme, under which the judiciary cannot make laws or amend the Constitution through any innovative or creative interpretation.

THE ‘BASIC’ MYTHOLOGY The mythology of the basic features of the Constitution can be traced back to the amendment clause of the Constitution. Under Article 368, which is the specific provision dealing with amendment of the Constitution, Parliament is the repository of the constituent power. An amendment of the Constitution can be initiated only by the introduction of a Bill in either House of Parliament. Thus, the initiative in the matter of constitutional amendment has been exclusively reserved for Parliament. The President cannot do it by an ordinance, nor can the Supreme Court do it by a judicial diktat. We are all well aware of the judicial history of the marches and counter-marches, and the varying and contradictory interpretations given by the Supreme Court regarding the parameters of the constituent power of Parliament. Only a bare reference to its history and cases like those of Shankari Prasad, Sajjan Singh and Golak Nath is called for. Until the 1967 judgment in the Golak Nath

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case, the Supreme Court had, inter alia, held that there was no limitation on the amending power and every provision of the Constitution, including the clauses defining Fundamental Rights, could be amended. In the Golak Nath case, by a 6:5 majority, it reversed the earlier decisions and held that the Fundamental Rights enshrined in the Constitution were transcendental and immutable, that Article 368 of the Constitution laid down only the procedure for amendment and did not give to Parliament any substantive power to amend the Constitution, that a constitution amendment Act was also law within the meaning of Article 13 and as such Parliament could not take away or abridge Fundamental Rights even through a constitution amendment Act passed under Article 368. In 1973, in Keshavananda Bharati vs State of Kerala (AIR 1973 SC 1461), the Supreme Court reviewed the decision in the Golak Nath case. Ten of the 13 judges held that Article 368 itself contained the power to amend the Constitution and that ‘law’ in Article 13(2) did not take in a constitutional amendment under Article 368. The law declared in the Golak Nath case was accordingly overruled. On the question whether the amending power under Article 368 is absolute and unlimited, seven judges, constituting a majority, held that the power was subject to an implied limitation; a limitation that arose by necessary implication from its being a power to ‘amend the Constitution’. By a majority of 7:6 the Court ruled that ‘Article 368 does not enable Parliament to alter the “basic structure” or framework of the Constitution’. Three different terms, ‘basic elements’, ‘basic features’ and ‘basic structure’, were used. What constituted the basic elements, features or structure was, however, not clearly made out by the majority and remained an open question. Following this decision in the Keshavananda case, clauses (4) and (5) were inserted in Article 368 by the Constitution (42nd Amendment) Act, 1976, to dilute the application of the ‘basic features’ doctrine to the amending powers of Parliament. These clauses say that: (a) ‘there shall be no limitation, whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution’ under Article 368; and (b) a constitution amendment Act would not, therefore, ‘be called in question in any court on any ground’, that is, it would

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not be subject to judicial review. But the applicability of the doctrine of basic structure was reaffirmed by the Supreme Court in Indira Nehru Gandhi vs Raj Narain (AIR 1975 SSC 2299) and Minerva Mills vs Union of India (AIR 1980 SC 1789). In the latter case the Court held clauses (4) and (5) as void, on the grounds that this amendment sought to totally exclude judicial review, which, according to the judges, was a ‘basic feature’ of the Constitution. The Court further said: Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of the constitution and, therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one. We need to mark the words ‘Constitution had conferred a limited amending power’. Where does it say in the Constitution that the amending power is a limited one? Can it be shown to have been the intention of the founding fathers to limit the amending power? Who has limited it? Obviously, only the Supreme Court itself. But can the Court read into the Constitution what is non est and in effect legislate or even make the Constitution? A presumption is taken to be a self-evident premise or axiom and a myth is built upon it. So long as the decision in the Keshavananda case is not overturned by a larger Bench of the Supreme Court, any amendment to the Constitution can be interfered with by the Court on the ground that it affects one or other of the known or unknown basic features of the Constitution. In the Keshavananda case, Justice Sikri (para 302) had tabulated the ‘basic features’ of the Constitution as follows: 1. Supremacy of the Constitution. 2. Republican and democratic form of government.

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3. Secular character of the Constitution. 4. Separation of powers. 5. Federal character of the Constitution. In the same case, Justice Hegde and Justice Mukherjee included the sovereignty and unity of India, the democratic character of our polity and individual freedom in the elements of the basic structure of the Constitution. They believed that Parliament had no power to revoke the mandate to build a welfare state and an egalitarian society (para 682). Justice Khanna also said that Parliament could not change our democratic government into a dictatorship or an hereditary monarchy, nor would it be permissible to abolish the Lok Sabha and Rajya Sabha. The secular character of the state could not, likewise, be done away with (para 1437). In Indira Nehru Gandhi vs Raj Narain (AIR 1975 SC 2299, paras 55 and 213), Justice Chandrachud found the following to be the fundamental elements of the basic structure of the Constitution: 1. 2. 3. 4.

India as a sovereign democratic republic. Equality of status and opportunity. Secularism and freedom of conscience. Rule of law.

The same judge in the Minerva Mills case added the ‘amending powers of Parliament’, ‘judicial review’ and ‘balance between the Fundamental Rights and the Directive Principles’ to the list of elements basic to the Constitution. The concept of basic structure was further developed by the Supreme Court and the position that the basic features cannot be altered even by constitutional amendments was further confirmed, and more essential features of the basic structure were added in Waman Rao case (AIR 1981 SC 271), Bhim Singhji case (AIR 1981 SC 234), S.P. Gupta vs Union of India (1st Transfer of Judges case, AIR 1982 SC 149), Sampath Kumar case (AIR 1987 SC 663), Kihoto Hollohon vs Zachilhu (AIR 1993 SC 412 [1992] ISCC 309) and L. Chandrakumar vs Union of India (AIR 1997 SC 1125). In P.V. Narasimha Rao vs State (AIR 1998 SC 2120), Justice S.C. Agarwal held that parliamentary democracy is part of the basic structure of the Constitution.

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In the S.R. Bommai case regarding the dismissal of the BJP governments in Madhya Pradesh, Himachal Pradesh and Rajasthan, Justice Jeevan Reddy and Justice Ramaswamy reiterated that federalism, inter alia, was a basic feature of the Constitution. Justice Ramaswamy held that a democratic form of government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review were among the basic features of the Constitution. Chief Justice Ray did not find it possible to hold the concept of free and fair elections as a basic feature, whereas Justice Khanna in the same case found this principle to be an element of the fundamental features of the Constitution (Indira Nehru Gandhi case, paras 55 and 213). Justice Chandrachud did not subscribe to the view that the Preamble to the Constitution holds the key to its basic structure (para 665). Justice Beg on the other hand found that the Court can find the test (of constitutional validity) primarily in the Preamble to the Constitution. The Preamble, he believed, furnished the yardstick to be applied even to constitutional amendments.

THE SOVEREIGNTY

OF THE

PEOPLE

The mythology around the great judicial invention of the doctrine of basic features continues to grow. But it is evident that so far there has been no consensus in this regard among judges themselves and no majority judgment is available laying down all the features of the Constitution that may be considered ‘basic’. The Court has not foreclosed the list of the basic features as suggested by different judges in different cases. In the Indira Nehru Gandhi case, Justice Chandrachud inter alia observed that ‘the theory of basic structure has to be considered in each individual case, not in the abstract, but in the context of the concrete problem’. The Constitution of India, unlike the Nepalese constitution, for example, does not contain any provision in regard to basic features. There is nothing to suggest that the Constitution makers wanted any provisions of the Constitution to be absolutely unamendable. It was certainly not beyond the ingenuity of the founders to provide for it if they wanted it to be so. In fact, all

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the evidence is to the contrary. It was repeatedly declared in the Constituent Assembly and elsewhere by Nehru, Ambedkar and others that they did not wish to bind succeeding generations; that, to use Nehru’s words, ‘if you make anything rigid and permanent you stop a nation’s growth, the growth of a living, vital, organic people’. If the sovereign people through their representatives cannot bring about desired change, who will? Closing the doors on peaceful change through constitutional democratic means may be an invitation to anarchy and violence. For, if the people are determined to alter any part of the structure or features of the Constitution, nothing can stop them. Sovereignty vests in the people of India and not in the hands of the Supreme Court. If the sovereign will of the people can find expression in any institution, it can only be in one representing the people. Nehru very categorically held that the Court could not be allowed to become the third chamber over the Lok Sabha and Rajya Sabha. What the Supreme Court has done in recent years is to assume to itself a power of veto on all constitutional amendments. Instead of interpreting the amendment clause of the Constitution and declaring the law, the Court, in effect, says that it will decide in each case whether to permit Parliament to amend the Constitution. In other words, the constituent power gets transferred from the elected representatives of the people to the judges of the Supreme Court. Justice Cardozo, the favourite icon of many of our learned judges, raised the question very clearly in the first quarter of the last century when he asked whether the judicial process is creative or declaratory. My humble submission is that our Constitution is crystal clear on the point and says that the job of the Supreme Court is to ‘declare’ the law (Article 141). To quote the first Chief Justice of India: In a democratic country, the people make the laws through their legislature. It is not the function of the court to supervise or to correct the laws passed by the legislature as an overriding authority. The Supreme Court must remember that it is not above the Constitution and laws, that it is also accountable to the ultimate

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sovereigns, the people of India, and that just as the power to amend is said to be a power limited only to amend, the Supreme Court’s own power to interpret and declare the law cannot be extended to making or rewriting the provisions of the Constitution. To put it differently, one is tempted to say: ‘Since the Constitution had conferred on it a limited power of judicial review and of interpreting the Constitution only for doing complete justice within its jurisdiction, the Supreme Court cannot under the exercise of that limited power enlarge that very power into an absolute power.’ Indeed, limited judicial review is one of the basic features of our Constitution and, therefore, the limitations on that power cannot be destroyed. In other words, the Supreme Court, under Articles 32, 141 and 142, cannot expand its power of interpretation so as to acquire for itself the right to amend or prevent an amendment to the Constitution on the grounds of a self-invented ‘basic features’ doctrine and thereby, in effect, to destroy the most basic feature of Indian polity, namely, the primacy of the people and democracy as government of the people, by the people and for the people. It is the people and the Constitution framed by their representatives that have given certain limited powers to the Supreme Court, as to other organs. The donee of a limited power cannot by exercise of that power convert the limited power into an unlimited one. Rights of citizens extend to examining each decision of the Court on merits and, where necessary, to criticize it and to build opinion against it. After all, even the law declared by the Supreme Court is binding only on the lower courts. It does not prevent us from critically analysing it. Well-informed public opinion must come to impact on judicial decision making and national affairs in a big way. Today the imperative needs of renaissance and resurgence make it more imperative than ever before.

6 THE CONSTITUTION

AND

‘DUE PROCESS’ S.K. Dholakia

T

he argument that the Supreme Court overstepped the limits of its power is based upon two premises: one, that it is not the function of the Court to include, impliedly, that which the Constitution makers deliberately decided to exclude; and, two, that democracy is damaged by inclusion of the ‘due process of law’ clause, as it gives final say in public affairs to judges, who, however wise, would be unelected, and not to the representatives of the people, who would be elected. Before I deal with the validity of the two premises, it would be useful to define the term ‘due process of law’. The phrase, well known because of its use in the US Constitution, first appeared in a statutory form in 1354: ‘No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by Due Process of Law.’ Sir Edward Coke, the famous British jurist of the 16th century, expounded that the term ‘by law of the land’ was equivalent to ‘due process of law’. The idea of ‘due process of law’ has been praised and also reviled. As will become clear upon perusing the following, opinion is divided.

EXCLUSION

OF

‘DUE PROCESS

OF

LAW’

The first question is, did the Constitution makers deliberately exclude the ‘due process of law’ clause? The answer is that they

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did exclude it, but, as the following discussion shows, it is doubtful if they did it ‘deliberately’. The debates in the Constituent Assembly suggest that the members supported the retention of the ‘due process’ clause almost throughout. The lone exception was of Alladi Krishnaswamy Ayyar, who too was not entirely sure. The motion to exclude followed Ambedkar’s final reply in which he said that he himself had no view and that members might decide whatever way they liked—an astonishing final statement on so important an issue. On 6 December 1948, the first day of the debate, most members supported the retention of the ‘due process of law’ clause. The ‘lone voice in support of the retention of the expression “procedure established by law” as against the “due process” provision’ was of Alladi Krishnaswamy Ayyar. He ‘argued that the verdict of three or five gentlemen sitting as a court of law on what exactly was the “due process” according to them in a particular case could not be regarded as more democratic than the expressed wishes of the Legislature or the action of an executive responsible to the Legislature’. However, even Ayyar, the ‘lone dissenter’, said at the end of his speech: The Drafting Committee in suggesting ‘procedure’ for ‘Due Process of Law’ was possibly guilty of being apprehensive of judicial vagaries in the moulding of law. . . . I am still open to conviction and if other arguments are forthcoming I might be influenced to come to a different conclusion. The debate remained incomplete on 6 December 1948, and when it was continued the following day, Ambedkar requested the Chair to adjourn its consideration for some time. When the debate resumed a week later on 13 December 1948, there was no further discussion. The Chair merely asked Ambedkar to state his final reply. This is how he ended his speech: We are therefore placed in two difficult positions. One is to give the judiciary the authority to sit in judgment over the will of the legislature and to question the law made by the legislature on the ground that it is not good law, in consonance with fundamental principles. Is that a desirable principle? The second

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question is that the legislature ought to be trusted not to make bad laws. It is very difficult to come to any definite conclusion. There are dangers on both sides. For myself I cannot altogether omit the possibility of a legislature packed by party men making laws which abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad. It is rather a case where a man has to sail between Charybdis and Scylla and I therefore would not say any thing. I would leave it to the House to decide in any way it likes [emphasis added]. Immediately after Ambedkar’s speech, the Chair put the matter to vote, and the House voted to omit reference to the ‘due process of law’ clause. That Ambedkar should have compared the legislature and the judiciary with Scylla and Charybdis—two monsters in Greek mythology—is indicative of the mental dilemma he faced and which he never resolved. If this was the position of one who had perhaps a better grasp of constitutional issues than many others, then to suggest that the Constitution makers ‘deliberately’ rejected the ‘due process of law’ would be inaccurate. We shall perhaps never be able to answer whether the note of Sir B.N. Rau influenced the final judgment of the Constitution makers. In the note, Sir B.N. Rau had stated that Justice Frankfurter of the US Supreme Court had advised that the ‘due process’ clause be dropped from what since became Article 21.

INTERPRETATION

OF

ARTICLE 21

In the US It would be appropriate to ascertain what the US Supreme Court regarded as the limits of the courts’ power in relation to ‘due process’.

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In a leading judgment, the US Supreme Court held: Defining the scope of the Due Process Clause ‘has at times been a treacherous field for this Court’ giving ‘reason for concern lest the only limits to . . . judicial intervention become the predilections of those who happen at the time to be Members of [the US Supreme] Court’. The Court went on to hold, relying upon a well-known case, that ‘the Due Process Clause affords only those protections “so rooted in the traditions and conscience of our people as to be ranked fundamental”.’ The limits of the ‘due process’ clause were put by Justice Frankfurter in the following words: But neither does the application of the Due Process Clause imply that judges are wholly at large. The judicial judgment in applying the Due Process clause must move within the limits of accepted notions of justice and is not to be based upon the idiosyncrasies of a merely personal judgment. The fact that judges among themselves may differ whether in a particular case a trial offends accepted notions of justice is not disproof that general rather than idiosyncratic standards are applied.

In India The story of evolution of ‘due process’ in India begins with the case of A.K. Gopalan vs State of Madras. The Court held that as the Constitution makers did not accept the suggestion to include the ‘due process’ clause in Article 21, it ought not to imply such a provision in the Constitution. The case arose out of the petitioner having been preventively detained. For several years, that remained the law. The concept of ‘due process of law’, expounded in Maneka Gandhi’s case became a part of our law. The experience of the working of the Constitution had a lot to do with the change in the approach of the Supreme Court. Gopalan’s case had held as follows: ‘Procedure established by law’ must be taken to refer to a procedure which has a statutory origin, for no procedure is

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known or can be said to have been established by such vague and uncertain concepts as ‘the immutable and universal principles of natural justice’. In my opinion, ‘law’ in Article 21 means ‘positive or State-made law’. The Court’s unstated assumption was that Constitution makers rightly chose to give power to decide what is in the best interests of the community to the elected representatives of the people rather than to a group of wise but not elected judges. But there was widespread belief that the events did not prove that assumption right. Its most remarkable example was the declaration of Emergency. Another was an attempt to amend the Constitution taking away power of the courts to decide election petitions challenging the validity of election of a person holding the office of Prime Minister. The declaration of Emergency, arbitrary arrests of a large number of political dissidents, assumption of arbitrary power of arrests, exercise of power to save one person from challenge to the election by amending the Constitution so as to exclude from challenge the office of the Prime Minister, etc. led many to believe that the elected representatives did not always work for the best interests of the community, and needed to be controlled. The jurisdiction of the Supreme Court to determine the scope of the words used in Article 21 so as to imply due process cannot be denied. What comes in the way of the exercise of that undoubted jurisdiction is: (a) the rejection of the ‘due process’ clause by the Constituent Assembly; and (b) Gopalan’s case, which held that ‘due process’ does not apply in India. As regards objection (a), it is clear from the narration in the earlier part of this paper that though the proposal to introduce ‘due process’ was rejected, the decision appeared to lack conviction. As regards objection (b), the events after Gopalan’s case showed that the belief of the Constitution makers that the legislature ought to be supreme was not justified. In the circumstances, the only institution that could exercise restraining influence was the Court. Consequently, the Court formed the view that Article 21 should be so interpreted that no law which prescribed unjust and unreasonable procedure, or abridged or took away rights in an unjust

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and unreasonable manner, would be valid. That, in effect, is the ‘due process of law’. This interpretation of Article 21 was not limited to the words ‘except according to the procedure established by law’. It extended to the interpretation of the word ‘life’. Thus, in Sunil Batra’s case it held thus: The scope of the words ‘life and liberty’ both of which occur in Vth and XIVth Amendments of the US Constitution, which to some extent are the precursor of Article 21, have been vividly explained by Field, J. in Munn vs Illinois. To quote: By the term ‘life’ as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world. . . . By the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bonds of a prison. This statement of law was approved by a Constitution Bench of this Court in Kharak Singh vs State of UP (1964) 1 SCR 332 @ 347, as also in D.B. Patnaik (1975) 3 SCC 185. Personal liberty as used in Article 21 has been held to be a compendious term to include within itself all the varieties of rights which go to make personal liberties of the man other than those dealt within clause d of Article 19(1). The burden to justify the curtailment thereof must squarely rest on the State. The interpretation of Article 21 may have been justified due to experience of the working of the Constitution. However, the power of Court to have the final say on questions such as whether any Act of legislature or right curtailed by it or by any subordinate legislation or executive action is reasonable or not ought not to mean that the Court may do so whenever it thinks it fit to do so. The Court must forever be conscious of the fact that it is an

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unelected branch of the government; that the wishes of the people as expressed by legislation ought to be treated with greatest respect; and that the Court would exercise its power to have the final say only when the legislature has enacted a law that is entirely contrary to the rights and traditions that may be considered as fundamental. It is a matter of concern that the courts have not always exercised their power keeping in mind this limitation. Thus, the new interpretation of Article 21 includes requirement of speedy trial, free legal service, bail and at least one appeal. The Court has taken an active role in matters such as development of urban areas, supply of fresh water and air, food, clothing and shelter, access to roads, vehicular pollution in Delhi, falling of a bus into a river, denudation of forests, etc. Judicial intervention was justified by courts on the grounds that the right of (dignified) life under Article 21 included the right to appropriate legislation to fulfil that right, and if the legislature is tardy in implementing the same, the Court would do the same. This, of course, is far from what is understood in the US to be covered by the ‘due process’ clause. The courts in India have travelled a long distance: from the time of Gopalan, when ‘due process’ was not even allowed to be pleaded, to the time when the Court assumes powers that even the most liberal judges of the US never contemplated. It appears to me that while the idea of ‘due process’ is a step in the right direction, there needs to be some introspection by all sections of the community and by the courts themselves. Only a public debate, such as the present one, would help focus and ultimately resolve the problem of keeping the courts and the legislatures within the limits of their power.

7 ‘DUE PROCESS’ OR ‘PROCEDURE ESTABLISHED BY LAW’? Ajay K. Mehra

The judges of Aragon began by setting aside laws and ended by making them. And all this sweeping development could only be possible because of the presence of one little word ‘due’, which in its content knows no bounds and is not subject to any fixed definition. Whenever a substantive law or some procedure laid down in any law did not find favour with the majority of the learned judges of the Supreme Court, it was not reasonable and, therefore, it was not ‘due’. (Justice Das of the Supreme Court of India while delivering judgement in the A.K. Gopalan vs State of Kerala case. Quoted by Seervai [1993: 980])

THE MAIN ISSUE

T

he main issue involved in the debate over ‘due process’ of law as given in the US constitution, and ‘procedure established by law’ as provided in the Constitution of India, is whether the courts should have the right to strike down as ultra vires a law enacted or a constitutional amendment made by a legislature elected by people, and whether the power of judicial review vested in the judiciary should be allowed to override the basic function and powers of the legislatures to legislate. In other words, and in particular relation to India, whether the doctrine of ‘basic structure’ propounded by the Supreme Court of India in

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the Keshavananda Bharati case in 1973 has negated the principle of ‘procedure established by law’ given in the Constitution of India. In the following discussion we attempt to review the debate in the Constituent Assembly (CA) of India in order to understand why the CA gave its preference for the ‘procedure established by law’, and what do the minds of the founding fathers imply for the situation emanating from the ‘basic structure’ doctrine pronounced by the Supreme Court of India in 1973. This issue was keenly debated in the CA while discussing draft Articles 15 and 15-A (Articles 21 and 22), because the Drafting Committee chose to override the recommendations of CA’s Advisory Council on Fundamental Rights. The matter was reopened again nine months later with the introduction of Draft Article 15-A by Dr B.R. Ambedkar. In both the cases the Drafting Committee succeeded in having its way and inserting the Articles in the Constitution of India. The debate, rather the process of this debate and the CA’s decision on it, went through five stages: 1. The CA’s Advisory Council on Fundamental Rights recommended the use of the phrase ‘due process of law’ in the Article meant to secure ‘protection of life and personal liberty’ to be incorporated in Fundamental Rights. 2. The Drafting Committee changed it to ‘procedure established by law’ in the Draft Article 15. 3. Most members of the CA taking part in the discussion on the Draft Article 15 argued (6 and 13 December 1948) in favour of ‘due process’ as they felt that parliamentary power emanating from ‘procedure established by law’ could be misused on partisan grounds to curb ‘personal liberty’ of individuals, both citizens and non-citizens. 4. Dr Ambedkar in his reply to the debate felt that it was a difficult choice and did not show any particular preference for either, leaving the choice to the members, who eventually voted to retain ‘procedure established by law’, as proposed by the Drafting Committee. 5. The issue was virtually reopened nine months later (15 September 1949) when Dr Ambedkar introduced Draft Article 15-A, now Article 22, for discussion, which, taking account of sensibilities of the members of the CA, attempted

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to provide added safeguards for citizens by making two clauses of the Cr. PC constitutional—virtually taking them away from Parliament’s amending powers, as it were. This, he claimed, brought in the spirit of (substantive) ‘due process’ in the functioning of the ‘procedure established by law’. Between (1) and (2) came the CA’s constitutional adviser, Dr B.N. Rau’s understanding of the functioning of the US Constitution, where, he thought, the Supreme Court had abused the substantive ‘due process’. Any doubts in his mind were removed after a discussion with Justice Frankfurter of the US Supreme Court, who pointed out to him that the makers of the American Constitution intended to use due process as a procedural safeguard only, but the US Supreme Court enlarged it into a substantive safeguard too. That, according to Frankfurter, made the judicial review undemocratic, because the Court could strike down the policies of the government even by taking the stand that they were substantively opposed to provisions of the Constitution. He was, therefore, for restricting judicial review to procedural grounds. According to Seervai, ‘By substituting for the words “due process of law” the expression “except according to procedure established by law” the Drafting Committee did not make the American concept of “due process” more precise as a matter of drafting—the Committee gave up the concept altogether’ (emphasis added). The finality in Seervai’s observation regarding the preference of the Drafting Committee for ‘procedure established by law’ as against the American concept of ‘due process’, which was comprehensively rejected despite the strong tilt several members showed towards the concept, suggests the limitations of the doctrine of ‘basic structure’ for the Constitution of India.

Meaning and Implication Both of these concepts are linked to the evolution and eventual institutionalization of the doctrine of the rule of law as part of democratic theory, practice and governance. Aside from the overall importance of the Magna Carta in laying the foundation of civic and human rights, ‘due process’ was among the first legal

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instruments to create the basis for fair trial of an accused, both in procedure and in substance. The following two Articles of the Magna Carta deserve attention in order to understand the primacy that the ‘law of the land’ and ‘lawful judgement of the peers’ acquired in delivering and ensuring ‘justice’ in a democratic system: 1. Article 39: No free man shall be arrested or imprisoned or disseised or outlawed or exiled or in any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land. 2. Article 40: To no one will we sell, to no one will we refuse or delay right or justice. As pointed out by one of members of the CA the expression ‘per legum terrera’ in the Magna Carta has come to mean ‘without due process of law’. Later, Statute No. 28 during the reign of Edward III (1331), read, ‘No man of what state or condition so ever he be, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor indicted, nor put to death, without he be brought to answer by due process of law.’ This was perhaps the earliest use of this expression; certainly earlier than its use in the Constitution of the United States of America. Indeed, as the British constitutional system evolved subsequently, unlike in the US constitutional and legal systems, ‘substantive due process’ did not acquire credence there. Parliamentary supremacy has remained unchallenged in Britain. Obviously, what the Magna Carta has given is procedural due process, which is essentially based on the concept of procedural fairness. As a bare minimum, it includes an individual’s rights to be adequately notified of charges of proceedings involving him, and the opportunity to be heard at these proceedings. Thus, while the Magna Carta forbade the king from disobeying Parliament, it did not create any instrument to forbid Parliament from doing anything. The idea of substantive due process was developed in the 18th and 19th centuries in USA. The Bill of Rights and 10 Amendments (particularly the Fifth Amendment) to the US constitution that were passed as a single unit on 15 December 1791, and the 16th Amendment, ratified in 1868, established that the idea of due

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process was substantive too. While proposing the Bill of Rights to the Congress, James Madison thus explained, ‘Magna Carta does not contain any one provision for the security of those rights respecting which the people of America are most alarmed.’ Substantive due process has thus developed as a limitation on the power or authority of governmental legislative bodies to abridge any person’s life, liberty or property interests.

The CA Debate on Article 21 The debate on the Draft Article 15 in the Constituent Assembly began with members expressing surprise that the Drafting Committee had ignored the recommendation of the CA’s Advisory Council on Fundamental Rights to incorporate ‘due process of law’ in the Article meant to secure ‘protection of life and personal liberty’ in the section on Fundamental Rights, and had opted for ‘procedure established by law’. And, of course, it prefixed ‘personal’ to ‘liberty’, which, except for a few dissenting voices, was generally accepted. The debate that followed on the Draft Article was informed by the situation in the USA and concerned effective judicial protection to ‘personal liberty’. It was felt that since Parliament, party politics, as well as conventions and traditions governing them had yet to evolve in the country, partisanship was expected to be the guiding element of parliamentary politics. Naturally, most members of the CA who introduced amendments in the Draft Article to restore ‘due process’ and took part in the debate were worried that ‘procedure established by law’ would weaken the role of the judiciary in protecting ‘personal’ liberty from an executive and a legislature that had not developed norms for governing a complex and diverse society such as India, and could be capricious and impulsive under the existing Indian situation. Kazi Syed Karimuddin (CP and Berar: Muslim) strongly argued that ‘procedure established by law’ does not make the rights inalienable. Moreover, since institutions were yet to be developed, political parties were not fully developed and ‘discipline is unknown’, it was advisable to have judicial protection. Supporting the amendment to substitute ‘procedure established by law’ by ‘without due process of law’, H.V. Pataskar (Bombay: General) drew the attention

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of CA to the fact that the new democratic India will naturally have a ‘party government’, which was new in the Indian context, ‘and we have instances which lead us to think that the party machine at work is likely to prescribe procedures which are going to lead to the nullification of the provision which we have made in the Fundamental Rights.’ Obviously, the arguments of these members strongly emphasized the non-partisan status and role of the judiciary in ensuring personal liberty. Mahboob Ali Baig Shah Bahadur (Madras: General), for example, wanted ‘except according to procedure established by law’ substituted with ‘save in accordance with law’, because the concept of ‘procedure established by law’ was taken from Article 31 of the Japanese Constitution, which ensured life and liberty of persons within Japan’s territory ‘according to procedure established by law’, without providing for the safeguard available against misuse of authority by the Japanese law enforcing agencies in subsequent Articles 32, 33, 34 and 35. He had no objection to the change made by the Drafting Committee provided the provisions of the rest of the four Articles from the Japanese Constitution were also incorporated to ensure the legal safeguards. In fact, by referring to the Japanese Constitution, he raised the issue of police powers of the state, which could be misused unless sufficient judicial protection had been guaranteed to Fundamental Rights. He said: I submit that there must be the right of the citizen to go to a court to prove that the ground on which he has been arrested is wrong and he is innocent. That is the elementary right of the citizen as against the executive which might be clothed with power by a party legislature which might pass a law saying that the executive is empowered to take away the liberty of a person under certain circumstances and he will have no right to go to court and prove his innocence. . . . But we must understand that the words ‘without due process of law’ have been held in England and other countries to convey the meaning that every citizen has got the right when an action has been taken against him depriving him of his personal liberty, to go before the court and say that he is innocent. That right is given under the expression ‘without due process of law’ or ‘save in accordance with law’.

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Pandit Thakur Dass Bhargava (East Punjab: General) objected to too much emphasis placed on procedure and making it ‘sacrosanct’, in the process weakening the substantive law. He said: Though these words ‘without due process of law’ which are sought to be substituted for the words in the section have not been defined anywhere, their meanings and implications should be understood fully. By using the words ‘without due process of law’ we want that the courts may [be] authorized to go into the question of the substantive law as well as procedural law. ‘Due process’ to him took care of both procedural and substantive law and gave the people greater right to defend themselves against the capriciousness of an emerging state. He strongly endorsed Mahboob Ali Baig Shah Bahadur’s contention on the provisions of the Japanese Constitution. Expressing similar sentiments Chimanlal Chakkubhai Shah (Saurashtra) felt that: The ‘connotation [of ‘without due process of law’] is that in reviewing legislation, the court will have the power to see not only that the procedure is followed, namely, that the warrant is in accordance with law or that the signature and the seal are there, but it has also the power to see that the substantive provisions of law are fair and just and not unreasonable or oppressive or capricious or arbitrary. That means that the judiciary is given power to review legislation. Though he did not express the strong views expressed by some other members about the legislature and executive, he thought that since the executive might need emergency powers, which would be granted by a legislature controlled by it, it was only proper to have safeguards against misuse by empowering the judiciary to review legislations. He too, thus, was seeking a check on police powers of the state. Other members who supported the ‘due process’ against ‘procedure established by law’, such as, Krishna Chandra Sharma (UP: General) and K.M. Munshi, also thought that it would provide a necessary judicial protection to personal liberty and

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Fundamental Rights against a strong state. They did not think that the functioning of ‘due process’ in the US Constitution had created such anomalies that it would lead to unexpected and unwarranted strengthening of the judiciary vis-à-vis the legislature. Thus, they felt that ‘due process’, which originated in England much before it came to the USA, meant fair trial both in procedure and in substance, and despite assertiveness of the American judiciary in defining the constitutional provisions there, it could protect Fundamental Rights better. K.M. Munshi too felt that there appeared to be unreasonable suspicion of ‘due process’ despite the fact that it had not upset the legislative process in America, as in 90 per cent of the cases on the ‘due process’ that went to the American courts, the action of the legislatures had been upheld. He strongly felt that while the judiciary might certainly question several actions, it was unlikely to question all the legislations indiscriminately. He felt that ‘there must be some agency in a democracy which strikes a balance between individual liberty and social control.’ Alladi Krishnaswamy Ayyar, however, felt that though ‘due process’ in England meant due course of legal proceedings, it had acquired a different connotation with US practices, particularly because the US Supreme Court had not been consistent in interpreting the constitution and its decisions had many a times been conflicting. Hence, he indicated his preference for ‘procedure established by law’, as suggested by the Drafting Committee. In his detailed reply to the debate in the Constituent Assembly on Draft Article 15 of the constitution on 13 December 1948, Dr Ambedkar said: The question of ‘due process’ raises, in my judgment, the question of the relationship between the legislature and the judiciary. In a federal constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature. If the law made by a particular legislature exceeds the authority of the power given to it by the Constitution, such law would be ultra vires and invalid. That is the normal thing that happens in all federal constitutions. Every law in a federal

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constitution, whether made by the Parliament at the Centre or made by the legislature of a State, is always subject to examination by the judiciary from the point of view of the legislature making the law. The ‘due process’ clause, in my judgment, would give the judiciary the power to question the law made by the legislature on another ground. That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual. In other words, the judiciary would be endowed with the authority to question the law not merely on the ground whether the law was good law, apart from the question of the powers of the legislature making the law. The law may be perfectly good and valid so far as the authority of the legislature is concerned. But it may not be a good law, that is to say, it violates certain fundamental principles; and the judiciary would have that additional power of declaring the law invalid. The question which arises in considering this is this. We have no doubt given the judiciary the power to examine the law made by different legislative bodies on the ground whether that law is in accordance with the powers given to it. The question now raised by the introduction of the phrase ‘due process’ is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles. There are two views on this point. One view is this: that the legislature may be trusted not to make any law which would abrogate the fundamental rights of man, so to say, the fundamental rights which apply to every individual, and consequently, there is no danger arising from the introduction of the phrase ‘due process’. Another view is this: that it is not possible to trust the legislature; the legislature is likely to err, is likely to be led away by passion, by party prejudice, by party considerations, and the legislature may make a law which may abrogate what may be regarded as the fundamental principles which safeguard the individual rights of a citizen. We are therefore placed in two difficult positions. One is to give the judiciary the authority to sit in judgment over the will of the legislature and to question the law made by the legislature on the ground that it is not a good law, in consonance with fundamental principles.

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Is that a desirable principle? The second position is that the legislature ought to be trusted not to make bad laws. It is very difficult to come to any definite conclusion. There are dangers on both sides. For myself I cannot altogether omit the possibility of a legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad. Though indicating his preference for the Drafting Committee’s proposal, Dr Ambedkar was non-committal about the suitability of either ‘due process’ or ‘procedure established by law’ for India. As is clear from his statement, the federal dimension did not figure in his arguments, nor in the arguments of any of the other members who intervened. Their arguments were dominated by the issues of the sanctity of Fundamental Rights, of personal liberty to be more specific, which institution would be better able to protect rights and liberty, and with what provisions. But the question of the domain of the judiciary on the one hand, and of the legislature and the executive on the other in this context too is important and implicit in the discussion and the arguments presented. The suspicion of the members of representative institutions (elected representatives in particular) in a nascent democracy where rules of the democratic game had yet to evolve appears to have been prominent. It is significant that even after Dr Ambedkar had made his dilemma clear, all the amendments were defeated and the Draft Article 15 as proposed by the Drafting Committee was passed by the CA.

The CA Debate on Article 22 This issue of due process, or the importance of procedural and substantive law, was virtually reopened by the Drafting Committee when on 15 September 1949 Dr Ambedkar introduced Draft Article 15-A, which was finally incorporated in the Constitution of India as Article 22 after two days of intense debate, with a few

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amendments on 16 September 1949. Referring to the discomfort of the CA, including his own, and criticism in public of Draft Article 15 for giving Parliament a carte blanche to ‘make and provide for the arrest of any person under any circumstances as Parliament may think fit’, he introduced Article 15-A to provide ‘for the substance of the law of “due process”’. In this Article he put two provisions lifted from Cr. PC, through which he sought to incorporate two of the most fundamental principles every civilized country follows as principles of international justice. The first two clauses of Article 15-A, which added a caveat to the detention of a person on any charge by providing him the right to be informed, to consult a lawyer and to be produced before the nearest magistrate within a period of 24 hours, were thus made sacrosanct, and taken away from the authority of both Parliament and state legislatures. Clause 3(b) excluded enemy aliens or a person arrested under preventive detention from the protection provided in clauses 1 and 2. Clause 3 empowered Parliament to legislate on circumstances and period of preventive detention. On the whole, it was a balancing act in restricting the police powers of state (both executive and legislature), that is, bringing in substantive due process, and yet maintaining parliamentary supremacy in matters of preventive detention. The debate on this Article too was involved, with members sticking to the sanctity of ‘due process’ in order to reign in impending ‘parliamentary tyranny’ in a parliamentary democracy that they thought would result in enhanced and skewed executive powers too. Pandit Thakur Das Bhargava thought that while India needed ‘cent per cent’ due process, a substantive part had been lost in the proposed drafts. Making a marathon speech, he suggested several amendments aimed at giving the accused the right to proper access to legal aid and judicial remedies for defending himself in order to blunt the effect of the provision for preventive detention. Similar sentiments were expressed by many members, who welcomed the attempt in Article 15-A to plug the discrepancy resulting from the preference for ‘procedure established by law’, but were suspicious of the provision for preventive detention, which they thought gave extraordinary powers to the legislature and the executive. H.V. Pataskar (Bombay: General), who proposed that an arrestee should be told of the grounds of arrest

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within 24 hours and not ‘as soon as possible’ as given in the Draft Article, pointed out that the persons in Advisory Board would be appointed by the executive, which could turn tyrannical without proper judicial safeguards to the detainees. R.K. Sidhva (CP and Berar: General) proposed to restrict the total period of detention to nine months. Traversing the entire field of debate all over again that was covered while discussing Draft Article 15, Dr Bakhshi Tek Chand (East Punjab: General) thought that Article 15-A, with the proposed clause on preventive detention that had a weak protection for the accused and victims, created more problems not only regarding personal liberty, but also relating to ‘tyranny of the executive and legislatures’. I submit this procedure is open to serious objection and it is necessary that Constitutional guarantees be provided, so that legislatures of this country—provincial or central—are precluded from enacting legislation of this kind. . . . It does not give any fundamental right to the people. In fact, it is a charter for denial of liberties. He proposed an amendment that sought to make it a constitutional requirement that an explanation given by the arrested accused be placed before the Advisory Board provided for in the Draft Article. Jaspat Roy Kapoor (United Provinces: General) echoed the sentiment that the entire issue of the period of detention be left to the good sense of Parliament, whereas, as a matter of fact, you [referring to Dr Ambedkar] are suggesting the extent to which the legislature can freely go to impose limitations on personal liberty. So far as detenus are concerned, they are given no protection in this chapter and I submit this is very hard, and strikes at the very root of fundamental rights and personal liberty. Briefly speaking, the members virtually went along with the Drafting Committee, commending it and suggesting minor changes in the first couple of clauses that provided a constitutional guarantee to the two sections taken from the Cr. PC. But they had objections, some of them very serious, to the clauses relating to preventive

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detention, which they thought gave undue powers to the legislature and the executive, compromising the spirit of ‘due process’. Various suggested amendments were aimed at blunting the edge of detention in one way or another. However, a strong defence of the proposed Article came from Alladi Krishnaswamy Ayyar (Madras: General): I might mention that the main reason why ‘due process’ has been omitted was that if that expression remained there, it will prevent the State from having any detention laws, any deportation laws and even any laws relating to labour regulation. Labour is essentially a problem relating to persons and I might mention that in the United States Supreme Court, in the days when the conservative regime dominated US politics, enactments restricting the hours of labour constituted a violation of the ‘due process of law’. An American would be employed for 5 hours, 10 hours or 20 hours and make a slave of himself and yet it was held to be interfering with due process of law if there was a restriction of hours of labour, until the United States Supreme Court put a different construction in a later decision. . . . Then the next question is if you guarantee personal liberty in the Constitution either by the use of the words ‘due process’ or ‘procedure’ or any such thing the State will be hampered even with regard to detention and in regard to deportation. It is agreed on all hands that the security of the State is as important as the liberty of the individual. Having guaranteed that a person should not be detained or arrested for more than 24 hours, the problem necessarily had to be faced as to detention, because detention has become a necessary evil under the existing conditions of India. Even the most enthusiastic advocate of liberty says there are people in this land at the present day who are determined to undermine the Constitution and the State. In replying to the suggestions made for amendments, Dr Ambedkar said: I myself and a large majority of the Drafting Committee as well as members of the public felt that in view of the language of Article 15, viz., that arrest may be made in accordance with a

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procedure laid down by the law, we had not given sufficient attention to the safety and security of individual freedom. Ever since that Article was adopted I and my friends had been trying in some way to restore the content of due process in its fundamentals without using the words ‘due process’. I should have thought Members who are interested in the liberty of the individual would be more than satisfied for being able to have the prospect before them of the provisions contained in Article 15-A, and that they would have accepted this with good grace. But I am sorry that is not the spirit which actuates those who have taken part in this debate and put themselves in the position of not merely critics but adversaries of this Article. Dr Ambedkar accepted some suggestions that were aimed at providing extra protection to the detenues under preventive detention, but he strongly turned down the suspicion of the legislature and the executive. He also pointed out that even if preventive detention was dropped from Article 15-A, the entries dealing with it would remain in List I and List III of Schedule VII, empowering both Parliament and provincial legislatures to make preventive detention law. He emphatically pointed out that this Article provided protection against all such laws made by the centre or the provinces. A detailed reading of the debates on Articles 15 and 15-A brings out one point very clearly, that while the Drafting Committee, led by Dr Ambedkar as he stated at the closing of discussion on Article 15, had no particular preference between ‘procedure established by law’ and ‘due process’, they were leaning towards parliamentary supremacy in law making, with sufficient constitutional and judicial safeguards for ‘personal liberty’, as against judicial supremacy in determining whether every law was in accordance with ‘due process’ or not.

IN PLACE

OF A

CONCLUSION

Indeed, the CA debates throw only limited light on the preference for either of the concepts within the house. While some members remained strongly in favour of ‘due process’, Dr Ambedkar, while

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leaning towards ‘procedure established by law’, attempted to occupy a neutral ground. But the house passed Draft Article 15 without any amendment, and Draft Article 15-A with a few procedural amendments after prolonged and intense debate. Dr Ambedkar showed concern for personal liberty as well as for the spirit of ‘due process’ in order to keep a check on Parliament and legislatures in specific cases. However, his faith appeared to be more in elected bodies, and he seemed prepared to give the judiciary the role of a guardian only in specific cases. The question, however, arises as to how much of the substance of due process Articles 22(1) and 22(2) give, as claimed by Dr Ambedkar. It would be in order here to present the perspective presented by Seervai, who has pointed out that the interpretations of ‘due process’, aside from the judiciary versus the legislature perspective, have been closely linked to police powers of the states. He points out, ‘“Due process of the law” in England conveyed the idea of arrest or imprisonment according to the law of the land, as opposed to the arbitrary order of the King and his Council, and the procedural safeguards considered necessary in USA were not a necessary part of the concept in England’ (emphasis added). This, according to Seervai, has been buttressed by judgments in the A.K. Gopalan case. Justice Das, for example, said, ‘It will be incongruous to import the doctrine of due process without its palliative, the doctrine of police powers. It is impossible to read the last mentioned doctrine into Article 21.’ The Supreme Court in the Gopalan case considered a large number of questions, including preventive detention (Article 22[4] to [7]) and ‘personal liberty’ in Article 21. However, the different views expressed by the judges in this case do not lead to a pattern establishing an authoritative correlation of Article 19 to Articles 20, 21 and 22, or to the meaning of the expression ‘personal liberty’. It is nevertheless worthwhile quoting from the judgment of Justice Mukherjea in this case: Article 19 . . . gives a list of individual liberties and prescribes in various clauses the restraint that may be placed upon them by law, so that they may not conflict with public welfare and general morality. On the other hand, Articles 20, 21 and 22 are primarily concerned with penal enactments or other laws under

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which personal safety or liberty of persons would be taken away in the interests of the society, and they set down the limits within which State control should be exercised. Article 19 uses the expression ‘freedom’ and mentions several forms and aspects of it which are secured in individuals, together with the limitations that could be placed upon them in the general interest of the society. Articles 20, 21 and 22 . . . do not make use of the expression freedom and mention the several forms and aspects of it which are secured to individuals, together with the limitations that could be placed on State control where an individual is sought to be deprived of his life or personal liberty. The right to the safety of one’s life and limbs and to enjoyment of personal liberty, in the sense of freedom from physical restraint and coercion of any sort, are [an] inherent birthright of any man. The essence of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of ‘freedom’ to do particular things. This part of Justice Mukherjea’s judgment gives the impression that a degree of balance has been struck between ‘due process’ and ‘procedure established by law’ in the context of ‘police powers of the state’ and ‘personal liberty’. The question, however, deserves a deeper and more intense analysis by experts in constitutional law.

REFERENCE Seervai, H.M. 1993. Constitutional Law of India. Mumbai: N.M. Tripathi.

8 IS

THE

‘DOCTRINE’

THE

OBSTACLE? P.K. Dave

SIGNIFICANT COMMENTS

A

n important constitutional question has been raised in this seminar on the Supreme Court and the Constitution, and a fairly substantial discussion presented to show how the ‘doctrine of basic features’ established in the 13-judge Supreme Court decision in Keshavananda Bharati, can hold up progress in India and controvert the provisions of the Constitution itself. In my view, the question raised may be important for constitutional pundits to debate, but it must not cloud the several vital issues that we face today. That may indeed amount to missing the wood for the trees, as Justice Beg so aptly put it. There is a great deal to be done in the Constitution, in the electoral and other laws, and in the practice of governance for the Indian democracy to mature and consolidate. In the analysis circulated later, several views have been presented. For example, Fali Nariman has been quoted as saying that the majority view of the Supreme Court had been criticized as an assertion of naked political power by the Court in the guise of judicial interpretation; by propounding the basic structure theory (it was said), guardians of the Constitution had at one bound become guardians over the Constitution. However, as one reads on, one finds that while Nariman accepts ‘considerable validity’ of the criticism, he adds, ‘It was an auxiliary precaution taken against the possible tide of majoritarian rule.’ Further, Nariman says:

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If we must have faith in elective bodies—for our democracy to survive—we must hedge our bets. We must beware of majoritarian governments at all times—whether BJP, Congress or any other. It is this ‘novel doctrine’ that has helped save our liberties. Again, he acknowledges that the Supreme Court has succeeded ‘in retaining to itself the custody and control of the Constitution, which in the seventies was in danger of being taken over by the Parliament’. These are significant comments that cannot be ignored. There are opposing views extensively quoted in the theme paper by Pran Chopra which has been circulated. But the final word appears to be with Seervai. It has been said in the basic paper that while Seervai is quite supportive of the aims of the ‘doctrine’, he has also shown how, in several respects, the judgment was not as unanimous as has been understood generally. He has also remarked on the fact that the Constitution itself has put many limitations on the amending power set out in Article 368 and because of these limitations many basic features stand protected without any extra-constitutional device like the ‘doctrine’. However, Seervai has also shown that all the several amendments to the Constitution made under the powers given to Parliament (and the states where they are concerned) have been carried out without any great difficulty. As far as I know, there have been nearly 100 such amendments, several of them of a fundamental character and enforcing new Fundamental Rights or elaborating on the existing rights, finding support from the Directive Principles. The Supreme Court has handed down several supportive judgments that have only enhanced the stature of Parliament. I do not wish to argue about the justification for, or the jurisdictional aspects of, the ‘doctrine of basic features’, because all that and more has been very comprehensively discussed in the theme paper circulated. As I read it, the conclusions seem to be that the Supreme Court may have overstepped its role of guardian and gone on to interpolate a provision in the Constitution that seemed objectionable to many jurists. But at the same time, the ‘doctrine’ may have provided a very necessary cautionary provision in the use of parliamentary powers under Article 368.

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A few words about ‘majoritarianism’ damaging our federal parliamentary democracy. (Incidentally, majoritarian and majoritarianism are used frequently and not always in any pejorative sense. In the legislative field, I should think it means a large majority imposing its will on national issues without seeking a national consensus.) It may be that the first majoritarian action that we recall was by Indira Gandhi and that was possible because of an overwhelming majority of the Congress Party in Parliament and in the states. I would, however, like to draw attention to another more recent case in which, on a highly emotive local issue, the Punjab legislature used majoritarian power, not of one party alone, but of all parties going together, destroying the very concept of river water sharing provided for in accordance with and under the Constitution. In that case, the Bill was passed within a few hours, submitted to the governor and immediately assented to. This was quite an unprecedented exercise of majoritarianism to which the governor succumbed, forgetting his own responsibilities to the Constitution. On another plane, we also have several examples of the Supreme Court’s orders being ignored by state governments, sometimes even by the Government of India. While one could say that the Supreme Court in its activism is entering upon the executive field rather too frequently, the fact remains that even in important matters like river disputes, or the enforcement of the criminal law, or the protection of life and liberty of the citizen, its decisions and orders have been ignored and state governments concerned have neither been reported upon by governors nor seriously questioned by the Centre. All this in the name of political party solidarity, the likely impact on forthcoming elections, and so on. This is hardly a position that gives the Supreme Court the standing and the respect that the Constitution provides for and that the Constituent Assembly envisaged. Finally, a statement was made in the circular notice for the seminar that if the impasse (supposedly created by the ‘doctrine’ between Parliament and the Supreme Court) persists, the only way out would be a reference to the people by way of a new constituent assembly. Also that in the meantime uncertainty would hang over many amendments under consideration, including those recommended by the Venkatachaliah Commission that are becoming more urgent with the passage of time.

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We have already noted the authority of Seervai, that all the several amendments to the Constitution under Article 368 have been carried out without any great difficulty. I wonder whether, in the ‘many amendments under consideration’ and waiting a solution of the impasse, there are many that come under the purview of the ‘doctrine’. Hardly any among the Venkatachaliah Commission seem to be hit by the ‘doctrine’. Is it inertia of lawmaking or the ‘doctrine’ impasse that is the roadblock?

FAILURES

OF

DEMOCRACY

Now, let me go to a question that has been raised in the analysis: ‘Do we believe that our federal parliamentary democracy has not failed but has some serious defects?’ The analysis proceeds: if the answer is yes, then a serious effort should be made to see what remedies are available in the Constitution, whether as it exists or as it can be amended to be. I am afraid to a large extent the answer to the question, by no means rhetorical, is that, yes, there are serious failures in our federal parliamentary democracy that have to be addressed. The Venkatachaliah Commission summed up the position in the following words, ‘There is pervasive impurity of the political climate and of political activity. Criminalization of politics, political corruption and the politician–criminal–bureaucratic nexus have reached unprecedented levels needing strong systemic changes.’ Let me explain briefly how the parliamentary democracy in the country does not really represent the voice of the people. The electoral system has become so fractured that most MPs and MLAs are returned with a substantial minority vote, sometimes as low as 30 per cent. The same applies to the governments they go on to form; such governments are also supported by a majority of the legislators, but the governments do not have the backing of a majority of the voters. Despite this serious flaw in the representative character of elected legislators, the Venkatachaliah Commission considered and recognized the merit of replacing the first-past-the-post system with a run-off poll among the two leading candidates to ensure that 50 per cent plus one alone should give representative

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status to a candidate. But the Commission made no positive recommendation, leaving the proposition to be considered by the government and the Election Commission. The Election Commission on its part had accepted the idea and confirmed that there would be no special difficulty with regard to conducting run-off polls. It seems, however, that political parties are unwilling to give up the advantages flowing from a multiplicity of candidates, religious and caste factors. We are indeed a great democracy; our elections have been fair by and large, and the voter has proved repeatedly that he is alive and astute. However, apart from the essentially non-representative character of our legislators (the last Parliament had 67 per cent elected with a minority vote), there are several factors that show that India does not really have a functioning, representative and dependable democratic system. On the one hand we have blatant criminalization, making inroads into our legislatures; and on the other hand the functioning of the legislatures is skewed with politically motivated misbehaviour amounting even to a refusal to allow work to proceed unless some grievance—real, imaginary or contrived—is redressed.

DEFECTIVE POLITICS

AND

JUDICIARY

There are two other areas that need to be carefully considered. The first is the behavioural characteristic of a self-willed and selfserving political executive that seeks to, and succeeds in, interfering with the lawful functioning of the bureaucracy, both the civil services and the police. The political executive establishes direct linkages with various rungs of civil servants and the police, and abuses that linkage to influence the enforcement of the country’s laws, including those for the maintenance of law and order, registration, investigation and prosecution of crime, and so on. The fallout of Godhra, Gujarat, is already before us. It can be said without fear of contradiction that the situation is the same in all the states, bar none! The other very important pillar of the country’s governance is the judicial system. Here, I am not referring to the Supreme Court taking on law-making powers or arrogating to itself powers that

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belong to the government and Parliament. I am referring to the non-functioning judicial machinery below the Supreme Court level, where justice is always delayed and very frequently denied. The answer invariably is that there should be more judges, more courts and more facilities, with a free hand for the Supreme Court and the High Courts in financial matters. But there is hardly any attention given to the efficiency of the judicial machinery, to the great disruptions caused by adjournment of cases without limit and without doubt, the prevalence of corruption, and interference with evidence and the witnesses. These are all matters that have debased our democracy and I feel that they are far more important than the so-called disputation between Parliament and the Supreme Court for the ‘possession of its [Constitution’s] body and soul’. That is a non-issue today. If we do not look at the democracy of our country and its functioning, there is little point in disputing over the ‘doctrine of basic features’. Finally, we must not forget that the Venkatachaliah Commission’s recommendations for amendments to be made in the Constitution are not being obstructed by the ‘doctrine’, but by legislative inertia, if one may call it that. It is the over-occupation of the legislators with their political battles and posturings within the legislature that has prevented these august bodies from doing their work, and to this the government of the day is quite willing to contribute by not putting forth serious legislation. This again is a matter that deserves the attention of political observers, maybe not of this seminar.

9 ANOMALIES

OF THE

‘DOCTRINE’ R.K.P. Shankardass

ITS OPEN-ENDED NATURE

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ignificant anxieties have been arising over the ‘doctrine’ pronounced by the Supreme Court in 1973, that whatever the Court may consider from time to time to be the basic structure or framework of the Constitution cannot be altered by Parliament by using the power of amendment under Article 368 of the Constitution. In discussing these anxieties here, my object is to show that: (a) there was no need for the Supreme Court to evolve the doctrine of basic structure of the Constitution, and certainly not an open-ended basic structure doctrine; (b) the core values enshrined in the Constitution were in fact used to invalidate amendments when they were found to violate such values; and (c) the open-ended nature of the doctrine is beginning to lead to an irrational and confusing situation. Re-examining some of the judgments on this subject, one is struck by the fact that until 1973—in other words, till well before the Emergency of 1975–77—the questions before the Court mostly related to the right to property in Article 31 and measures by the government of the day to dilute the right to property so as to implement a land reforms programme. The opposition to such measures was strong and generated fierce controversies, particularly in proceedings before the Court. As observed by distinguished constitutional lawyer, the late Seervai, in his writings on the power to amend the Constitution,

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the challenges to six amendments, the first, 17th, 24th, 25th, 26th and 29th Amendments from 1950 to 1973 were all in the context of rights to property and generally related to legislation on land reforms, with one exception, that one part of the 25th Amendment raised the issue of judicial review when it sought to bar any court from examining the validity of a class of legislation to give effect to certain Directive Principles of State Policy. All of these amendments, with the one exception of the clause in the 25th Amendment relating to judicial review, were held as valid in the Shankari Prasad, Sajjan Singh, and even in the Golak Nath and Keshavananda Bharati cases (the last decided in 1973). The Shankari Prasad and Sajjan Singh judgments upheld the validity of the constitutional amendments unconditionally. It was only in the Golak Nath case that, while upholding the validity of the 17th Amendment, the Court, by a majority of one, laid down a condition for the future. It proceeded to declare that ‘Parliament will have no power in future, that is, from the date of this decision, to amend any of the provisions of Part III of the Constitution so as to take away or abridge the Fundamental Rights enshrined therein.’ Though in the Keshavananda Bharati case, the Supreme Court expressly reversed this ruling while upholding the validity of the 24th, 25th (with the above exception) and 29th Amendments, it chose to render the power of amendment conditional by placing a vague bar on the power of amendment by simply stating: ‘Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.’ But the Court did not at the same time apply itself to the task of defining, at least generally, the scope of such basic features. This was an important task, considering the Court was departing from a well-settled position and laying down a very important new condition on the power of amendment. Since the decision itself recognizes ‘judicial review’ to be a basic tenet of the Constitution, the judges comprising the full Bench could perhaps have attempted to seek a consensus on some of the other tenets (or core values enshrined in the Constitution), which some other judges have held to be basic, such as ‘democracy’ and, therefore, ‘free and fair elections’; ‘separation of powers’, ‘secularism’ and of course judicial review. That might well

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have prevented a number of subsequent Benches setting out to define or identify various other features as basic without sufficient in-depth consideration.

ITS ADVERSARIAL POSTURE It is striking to find from an examination of the Keshavananda Bharati judgment that while the real issues related to the validity of the 24th, 25th and 29th Amendments, on which clear-cut decisions were given at the hearing of the case, the Court and the counsel embarked on a greatly expanded and detailed examination of the overall scope of the power of amendment under Article 368, which in retrospect does not really seem to have been called for. Furthermore, the issues appear to have been considered in a highly adversarial and confrontational atmosphere. The pitch at which arguments appear to have been made is illustrated by a few paragraphs in the first judgment, that of Chief Justice Sikri, who observed as follows: 11. The respondents claim that Parliament can abrogate Fundamental Rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and one-party rule established. Indeed, short of repeal of the Constitution, any form of government with no freedom to the citizens can be set up by Parliament by exercising its powers under Article 368. 12. On the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Constitution gave the Indian citizens freedoms which were to subsist forever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31-C which has been inserted by the 25th Amendment. If Article 31-C is valid, they say, hereafter Parliament and state legislatures and not the Constitution, will determine how much freedom is good for the citizens.

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13. These cases raise grave issues. But however grave the issues may be, the answer must depend on the interpretation of the words in Article 368, read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves. In retrospect, and in the context that the validity of all three (24th, 25th and 29th) Amendments was upheld (except for the provision in the 25th Amendment relating to bar on judicial review), it seems fair to say that the issues raised were not really very grave and the controversy could and should have been dealt with on a relatively narrow basis (by restricting the judgment to the actual questions decided by the Court) instead of using a broad and large canvas of the overall scope of the power of amendment under Article 368. It also seems fair to say that the Court did not in fact restrict itself to applying ‘the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves’. It is considered by various learned commentators that the ‘doctrine’ of basic structure really came to be firmly established by the judgment of the Supreme Court in what is known as the election case (Indira Nehru Gandhi vs Raj Narain) which dealt with the validity of the 39th Amendment. It will be recalled that this amendment sought, inter alia, under a new Article 329-A in the Constitution, to bypass a judicial determination of the validity of Indira Gandhi’s election, and to declare her election valid by a constitutional amendment in the nature of a parliamentary (or legislative) judgment in the case. Here, again, the real issue was whether there was a violation of the principles of: (a) separation of powers; and (b) free and fair elections in a democracy underlying our Constitution, as well as the rule of equality as incorporated in Article 14, and the Court quite rightly struck down the parts of Article 329-A violative of these principles or core values of the Constitution. In other words, there was no need to give life to an uncertain and open-ended doctrine of what might be considered the ‘basic structure’ of the Constitution. It is also relevant to recall that this case arose out of the appeal filed by Indira Gandhi against the decision of the Allahabad High

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Court setting aside her election. This was mainly on the grounds that during a period when she had ‘held herself out to be a candidate’, she had obtained the assistance of a government servant in her office (though he had orally submitted his resignation) in violation of Section 123(7) of the Representation of Peoples Act, 1951, and thus committed a corrupt practice. Amendments made in the Act after this judgment (and given retrospective effect) provided that a person is only a candidate from the date of nomination so that the ‘holding out’ concept was abolished; and furthermore, had the effect that the resignation of the civil servant concerned was effective from the date of its submission. Following the established principle that it is open to the legislature to change the law (that is, the 1951 Act) retrospectively so as to remove the reasons for disqualification, leaving it to the courts to apply the amended law in a particular case, the Court unanimously held that these retrospective amendments were valid and therefore allowed Mrs Gandhi’s appeal and upheld her election. Up to this stage, therefore, the challenges to the validity of the various amendments to the Constitution could and actually were dealt with on the basis of principles embodied in the Constitution, that is, ‘judicial review’, ‘separation of powers’, democracy and ‘free and fair election’, even though not specified in particular Articles of the Constitution. There appears to have been no need to ratify and perpetuate a ‘doctrine’ of undefined aspects of the basic structure of the Constitution. The troubling result of the Court doing so has of course been that different Benches of the Supreme Court have sought to identify such basic features with disturbing regularity, raising serious anxiety. As I will try and show by reference to a few cases hereafter, this can lead to some real and avoidable difficulties and constraints on future planning and development. Of course, the real challenge to the Constitution as a whole did not come until the middle of the 1975–77 Emergency when Parliament sought to make perhaps the most outrageous amendment to Section 55 of the 42nd Amendment Act by providing in subsections (4) and (5): (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under

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this article whether before or after the commencement of section 55 of the Constitution (42nd Amendment) Act, 1976 shall be called in question in any court on any ground. (Judicial review) (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article. There are some who suggest that this drastic attempt to give Parliament unbridled power of amendment of the Constitution was perhaps in the nature of an angry, irrational reaction to the attempts to evolve and nurture the doctrine of basic features. Be that as it may, the fact is that it was introduced in the middle of the Emergency and necessarily led to the grave apprehension on the part of the people in general and the Courts in particular that Parliament was seeking the power even to abrogate the Constitution. It is gratifying that the opportunity to protect the country from such an outrageous attempt at constitutional amendment came soon after the end of the Emergency when these provisions were struck down in the Minerva Mills case. However, once again, instead of reasserting that the power of amendment was limited by the core values and principles enshrined in the Constitution such as democracy, free and fair elections, separation of powers, judicial review, secularism and the federal nature of the Constitution, the Court took the opportunity to further support the vague and open-ended concept of the basic features doctrine. What has happened since is ably described by Kashyap in the introduction to his new book after considering various Supreme Court judgments: It is thus evident that so far there has been no consensus in this regard among the Judges and no majority judgment is available laying down the features of the Constitution that may be considered ‘basic’. The Court has not foreclosed the list of the basic features as suggested by different Judges in different cases. In the Indira Nehru Gandhi case, Justice Chandrachud observed that ‘the theory of basic structure has to be considered in each

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individual case, not in the abstract, but in the context of the concrete problem.’ (p. 2465; emphasis added)

ITS INTERNAL CONTRADICTIONS An examination of the events following some of the cases considered by Kashyap may well begin with the position taken by Justice Khanna in the Keshavananda Bharati case, which overruled the Golak Nath proposition that Fundamental Rights could not be amended under Article 368. In that case Justice Khanna stated: Assuming that [one right, that relating to property], out of the many fundamental rights, is found to be an obstacle in pushing forward certain ameliorative measures and it is proposed to abridge that fundamental right, and it is also decided not to abridge or take away any other fundamental right, the present position, according to the stand taken on behalf of the petitioners, is that there is no power under Article 368 to abridge the obstructive fundamental right. The result is that even though reference is made on behalf of the petitioners to those fundamental rights as enshrine within themselves the valued concept of liberty of person and freedom of expression, the protection which is, in fact, sought is for the fundamental right to property which causes obstruction to pushing forward ameliorative measures for national weal. It is not, in my opinion, a correct approach to assume that if Parliament is held entitled to amend Part III of the Constitution so as to take away or abridge fundamental rights, it would automatically or necessarily result in the abrogation of all fundamental rights. I may mention in this context that for seventeen years, from 1950 till 1967 when Golak Nath’s case (supra) was decided, the accepted position was that the Parliament had the power to amend Part III of the Constitution so as to take away or abridge Fundamental Rights. Despite the possession of that power by the Parliament, no attempt was made by it to take away or abridge Fundamental Rights relating to cherished values like liberty of person and freedom of expression. If it was not done in the past, why should we assume that the majority of Members of Parliament in future

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would acquire sudden aversion and dislike for these values and show an anxiety to remove them from the Constitution. There is a vital distinction, in my opinion, between the vesting of a power, the exercise of the power and the manner of its exercise. But two years later, in the Election case, he appears to have reviewed his earlier opinion as the head note states: It was pointed out that no distinction was made by his Lordship in AIR 1973 SC 1461 so far as the ambit and scope of the power of amendment is concerned between a provision relating to fundamental rights and provisions dealing with matters other than fundamental rights. The limitation inherent in the word ‘amendment’ according to which it is not permissible by amendment of the Constitution to change the basic structure of the Constitution was to operate equally on articles pertaining to Fundamental Rights as on other articles not pertaining to those rights. Perhaps Justice Khanna’s seeming change of view could be understood in the context of facts and circumstances of the Election case. But concern and even anxiety begin to occur when we examine what judges in later cases have begun to identify or declare as ‘basic features’. The Constitution Bench in L. Chandra Kumar vs Union of India ([1997] 3 SCC 261) dealt with the nature of power of judicial review conferred by Article 226 of the Constitution and the power of superintendence conferred by Article 227. It was held that the jurisdiction conferred on the Supreme Court under Article 32 and on the High Courts under Articles 226 and 227 is a part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation. (See also: Surya Dev Rai vs Ram Chander Rai ([2003] 6 SCC 675, at p. 675.) Making Articles 32, 226 and 227 basic features of the Constitution which cannot be amended on the grounds that they provide

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the power of judicial review, completely ignores the possibility that what is admittedly extraordinary jurisdiction under these Articles may well have to be curtailed or removed in its present form in the course of trying to improve the administration of justice and provide a speedier justice delivery system. The writs covered by these Articles could, for example, be secured in regular suits as in fact they are under English law from where we borrowed the concept. In other words, judicial review can be exercised equally well in proceedings other than in the writ jurisdiction/proceedings under Articles 32 or 226. The rights guaranteed under the several parts of Part III of the Constitution overlap and provide different facets of the objects sought to be achieved by the Constitution. These objectives have been held to contain the basic structure of the Constitution which cannot be amended in exercise of the powers under Article 368 of the Constitution. (T.M.A. Pai Foundation vs State of Karnataka [(2002) 8 SCC 481 at pp. 650–51, para 330, per Ruma Pal J.]) This observation appears to suggest that nothing in Part III of the Constitution can be amended, and that could lead to rigidity, constraints and confusion in the process of development. Apart from that (and by contrast) a most important point to be noted is that the Keshavananda Bharati judgment overruled the Golak Nath case and the effect of this overruling was that the amendment of Fundamental Rights in Part III was again permissible. Parliament, therefore, proceeded to delete Article 31 from Part III of the Constitution. There was no challenge to this deletion of a Fundamental Right in Part III as being violative of the basic structure of the Constitution, which principle, as shown earlier, was itself introduced by the Keshavananda Bharati judgment! An independent and efficient judicial system is one of the basic structures of our Constitution. If sufficient number of judges are not appointed, justice would not be available to the people, thereby undermining the basic structure. (All India Judges’ Association vs Union of India [2002] 4 SCC 247 at p. 268)

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To make ‘an independent and efficient judicial system’ and the ‘need for a sufficient number of judges’ basic features of the Constitution seems to have been suggested without any careful thought. It is impossible to conceive of who might have the responsibility for the enforcement or the blame for violation of such a basic feature! Perhaps the most open-ended restriction is provided by the statement: ‘It is a well-settled legal position that the Preamble is a part of the Constitution and is the basic structure of the Constitution’ (State of UP vs Dina Nath Shukla (Dr) [(1997) 9 SCC 662 at p. 666]); this contrasts with the observation of Justice Chandrachud in the Election Case that, ‘It is impossible to subscribe to the view that the Preamble of the Constitution holds the key to its basic structure or that the Preamble is too holy to suffer a human touch’. (AIR 1975 SC 2299 at p. 2466 para 666) To say that the Preamble is a part of the basic structure simply makes the doctrine really open-ended and almost meaningless.

10 FEDERALISM REVISITED Justice A.M. Ahmadi

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et me begin by congratulating Pran Chopra for initiating this discussion on a very important topic. The question is often asked whether our Constitution, in the strict sense, is federal like the US constitution, or is it an amphibious constitution where the centre can move back and forth between the federal and unitary systems, and therefore is quasi-federal. India is also said to be a Union that is not a unitary state inasmuch the component or constituent parts, also described as states, are equal members of the union and have definite rights, powers and functions, not necessarily overlapping but often concurrent with the powers and functions of the Centre. Articles 2, 3 and 4 of the Constitution permit the Centre to create states, to divide a state, to add more territories to it. The President has only to make a reference to the concerned state legislature for its views. But once the views have been received, the Centre is free to decide the matter. Parliament also has powers, several powers, in certain situations even to legislate on subjects that are in the state list. This is the reason why the Constitution has been described by some as quasi-federal and by others as amphibious. But one thing is very certain, that it is not a federation like the United States, where it was the states that created the federal or central government and invested it with some of their powers. On the other hand, in India, while the states do have legislative powers of their own, in certain situations Parliament can legislate even on those powers. As Justice Beg put it in one of his judgments, ‘a conspectus of

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the provisions of our Constitution will indicate that whatever appearances of a federal structure our Constitution may have, its operations . . . its provisions . . . make it more unitary than federal’. Added to that is the feature that it establishes a government for the governance of the entire country. In doing so, the Constitution prescribes the powers of the central government, the powers of the state governments, and the relationship between the two for the purpose of efficient administration and governance of the country. In the case of Karunanidhi the Supreme Court has said, ‘To apply the meaning of the word federation or autonomy used in the context of the American constitution to our Constitution is totally misleading.’ The word ‘federation’ has no clear definition. Much depends on the provisions of the Constitution by which one is governed. So far as our Constitution is concerned, there is judicial acceptance, more or less, that it is a federation with a component of the unitary system on which the federation can move either on the unitary or the federal plane. Although our Constitution is based on the Westminster system, we have not followed it in its entirety. As Pran Chopra has pointed out in his article, when Nehru said that no supreme court and no judiciary will sit in judgment over the sovereign will of Parliament, it is not an accurate statement because our Parliament does not enjoy such a sovereign power. We have a mixture of the US system and the British system. Up to a point we accept the British Westminster system, but we depart from it because of our experience and history and the freedom movement, which taught us many lessons. As a result, our system was created through judicial interpretation. I do not want to use strong words like judicial activism, etc., but the power of judicial review has been invested in the courts. This is where conflicts have also arisen. I mean conflicts between Parliament and the Supreme Court or High Courts. But these conflicts are nothing new. Every democratic system goes through them, and the wisdom of the two bodies ultimately settles the issue. So merely because a conflict arises is no reason why one should run away from it. Judicial review came to be accepted in the United States for examining whether legislations made by Congress are consistent with the Constitution and the Fundamental

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Rights conferred on the citizens, and whether executive actions also are in conformity with the Constitution. So this power in a manner of speaking is the power that enables the Supreme Court or High Courts to oversee the functioning of the executive and also the exercise of legislative powers by the state legislatures or Parliament for the limited purpose of testing their constitutional conformity. If that be so, there are always going to be two views—Parliament’s view in passing the legislation and the courts’ view in examining the legislation in the context of the Constitution. Ultimately, the power of deciding as to whether a legislation is in conformity with the Constitution rests with the judiciary.

‘DUE PROCESS’ Now, if we go to the pre–Keshavananda Bharati period in India, a composite Article was suggested by K.M. Munshi which touched on ‘due process’ and property rights. The Article came in for a very serious debate, but ultimately the two aspects were separated, putting due process on one side and property rights on the other. Later on there was a serious debate whether we should include due process in our Constitution. The debate ended with the Constituent Assembly taking the view that we should. Dr B.N. Rao had gone abroad and held discussions with various people, including Justice Frankfurter in the USA, and it was the latter who advised him against introducing the due process, saying ‘your courts will be flooded with litigation’. Ultimately, the due process clause was not introduced and what we have is ‘in accordance with procedure established by law’. But then we started to have a little difficulty because any procedure enacted by Parliament or by a state legislature, or even subordinate legislation, could be ‘procedure established by law’, and it could take away the liberty or even the life of a citizen. Our concern over this went on expanding until both Articles 14 and 21 were drafted to mean that the procedure must be reasonable. And I must agree, and I have no hesitation in saying that I must agree, that by a process of this type of interpretation we have definitely introduced the due process clause by, and I may use the word, by the ‘back door’. And

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we have also proved Justice Frankfurter right. So this is how in certain areas of interpretation the situation has developed as the result of which that which was deliberately and consciously avoided has somehow found its way into our Constitution. But to come back to the point I was trying to make, the functions of Parliament or legislatures and the executive on one side, and the functions of the courts on the other side are definitely different, and courts have been invested with the power to oversee the functions of the executive, and also to test legislations on the touchstone of conformity with the Constitution. Merely because there is a possibility of conflict, would anyone suggest that courts’ power of judicial review should not be there? And if that power is not there, what are the consequences? There are situations of conflict, yes. But they exist everywhere, whether in the United States, Canada, Australia, or anywhere else. In India there was a conflict in earlier times when right to property was a Fundamental Right. Parliament made what it considered to be a reform in areas that touched on property. So various legislations got struck down as violation of the Fundamental Rights of the rulers of Indian states. On one side was the political wing, which thought that reforms were necessary for the development of the country. On the other side was the Court, which said your reforms cannot interfere with a Fundamental Right. Then what happened was that property rights were shifted from the list of Fundamental Rights to Article 300-A of the Constitution. Once this shift was made, the interpretation process also underwent a change. So Parliament did get a remedy at that point of time. What I am trying to say is that there is always a remedy for Parliament also when it comes to finding a remedy. Coming to the present day, former Speaker P.A. Sangma and his successors have gone through situations in which the guillotine is applied and a lot of legislation is passed without any discussion. The power to enact a law does not merely mean that you place the law on the table of Parliament and take it as passed. It needs an extensive and intensive debate, which is sometimes missing. This is an aberration. I am not taking it as something that is a good springboard for making an argument. No. But there is an apprehension, a possibility, which must be kept in mind. If we do not have that really intensive and extensive debate that is necessary

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for people to understand why this law was made—and when people do not understand why a law was made—a spate of litigation follows.

THE ‘DOCTRINE’ Now I come to what Pran Chopra really has focused our attention on. I must at the outset concede that the basic structure doctrine introduced by the Keshavananda Bharati case is not well defined. It does not say that these provisions constitute the basic structure of the Constitution. The question then is whether in the first place the Court was right in introducing this new doctrine because it whittles down Parliament’s power under Article 368 to amend the Constitution. But what is this power to amend the Constitution? There is one aspect that I would like to mention. Normally, the Preamble to the Constitution would not be in the body of the Constitution. But we always say that the Preamble to our Constitution is its soul, the body is Parts III and IV, and the rest is procedures. I have already mentioned that the functions of the courts and the functions of Parliament under the Constitution are independent, and they are likely to come in conflict. There is no difficulty about it. Conflicts have arisen, conflicts have been resolved also. But what is being said is that some decisions create some conflicts between the Constitution’s position and the doctrine’s position, between the Court and a clause of Article 368, between the Court and a part of Article 368(2), which subjects the President to untenable positions, between the Court and yet another part of Article 368(2), and that this creates a very complex position regarding the difference between interpretation and interpolation. This I take it is the main thrust. But I put it to this elite gathering that Parliament’s power under Article 368 extends to the total abrogation of the Constitution. If the answer is no, then where does this power of Parliament begin and where does it end under Article 368? The next question I pose is, does Parliament have the power to change the democratic process introduced under the Constitution, to change it from the parliamentary system to the presidential system? Third, should Parliament have the power to take away all Fundamental Rights?

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These are questions that need very serious consideration. And if the answers are, even if not in the negative, in the grey area of doubt, then how would you like to deal with that situation? Would you like to say that the doubtful situation does not matter and Parliament should go ahead and let our Fundamental Rights go and disappear into thin air? Or would you say that no, there must be some limit where Parliament must be restrained, and it should not have an absolute power, say, to do away with any provision of the Constitution? That is the question one has to ponder over seriously. In 1950 ‘we the people’ gave unto ourselves a particular Constitution, and basic features of the Constitution come in that. We gave unto ourselves that Constitution. Certainly, we also gave Parliament the power under Article 368 to amend the Constitution. But did anyone at that time think that an amendment could destroy the structure of the Constitution, or that this power extends to destroying the basic features? And what are the basic features? You see the Constitution, the Preamble, and Parts III and IV. It says there that ‘the state shall endeavour’—that is the expression used, and that is how further development takes place. If Parliament cannot be allowed to use that amending power so as to ultimately reduce the Constitution to a vegetable existence, then the question is, and it is a very relevant question: what is that basic feature of the Constitution by which the Supreme Court wanted to save that basic feature in Keshavananda Bharati’s case. That is where the debate then reaches. Pran Chopra has mentioned that it will create a conflict between the President and certain clauses. The power of the President is not in the discretion of the President, because by the 24th and 42nd Amendments to the Constitution, his power was virtually reduced to saying yes because they introduced in Article 368(2) the words that the Amendment Bill as passed by the Parliament shall be presented to the President, who shall give his assent to the Bill, and thereupon the Bill will become an amendment in the Constitution. Prior to that, these words were not there. The word ‘shall’ makes it obligatory on the President to go by the advice of the ministers. So, the President really comes, in a manner of speaking, more into conflict with Parliament than with the Court, because the Court steps in a little later. And when the Court

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steps in, it only says this amendment is struck down. So you can see how the power of the President also has been whittled down by these constitutional changes. It is in this context that one has to consider whether the doctrine of basic structure was well thought out and rightly introduced and needs to be preserved, or should we say that Parliament has the power to amend the Constitution. That it may amend the whole of it or it may do whatever it likes with the Constitution, take away Fundamental Rights, take away the democratic process etc. One has to see in all wisdom what is good for the country, having worked this Constitution for so many years.

ACCOUNTABILITY Next is the question of accountability. Parliament is accountable to the people. That I do not know how accountable it is now is another matter. The danger is very obvious. Amendments have been made which have done away with the President’s powers, and have made serious inroads into the democratic process also. And that is why Pran Chopra points out what Granville Austin has said about Parliament. The question narrows down to that. But it must be said that the basic features doctrine has not been defined. What is its scope? What is its periphery? That is not there. Therefore, there is a possibility of its expansion into different fields. For example, is the independence of the judiciary a basic feature or not? You know that at one point of time it was said from the highest level that we want a committed judiciary. So would you call it a basic feature or not? If you do not call it a basic feature, you may show your readiness to have a committed judiciary. So ultimately it is a question of what you want. We must all understand that a constitution is a living organism. It has to grow and it will, as time passes, human rights and various doctrines come in, international covenants come in, and so do Article 51 and Article 253 of the Constitution, which say you make laws on the basis of international covenants. All these are developments that take place around the Constitution. Then would you say we bind the Constitution into rigidity or we allow it the flexibility which is so essential for the development of the country, the rights of the

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people, growth, etc.? But I do see that the basic feature doctrine is a loose doctrine. It can be stretched. Whether you want to leave it to the wisdom of the Court or you want to define it is another matter. But I think that there is a need to say what are the areas that should be left to Parliament’s wisdom to amend, and what areas you would like to keep intact because we the people gave those areas unto ourselves. It is true that the constituent power is there under Article 368, but to what extent do you want to allow the exercise of that power is the debate which Chopra has set in motion and I am very grateful to him to have been given this opportunity to be a part of this very interesting debate.

11 INDIA’S JUDICIARY: THE PROMISE OF UNCERTAINTY Pratap Bhanu Mehta

You may ask what then will become of the fundamental principles of equity and fair play which our Constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know—that a society so riven that the spirit of moderation is gone, no Court can save; that in a society where that spirit flourishes no Court need save; that a society which evades its responsibility by thrusting upon the Courts the nurture of that spirit, that spirit will in the end perish. (Learned Hand)

A PARADOXICAL INSTITUTION

T

he judiciary in India is a deeply paradoxical institution.1 On the one hand courts have become extraordinarily powerful.2 Through a creative interpretation of the Constitution, courts have not only exercised their power of judicial review but have also managed to place limits on the power of Parliament to amend the Constitution.3 The judiciary has also become an institution of governance. In recent times it has, in the absence of parliamentary legislation, routinely made law; it has made public

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policy pronouncements; held executive bodies accountable and has directly taken over the supervision of executive agencies.4 It has cast itself as the ultimate custodian of constitutional values and the highest institution of accountability. On the other hand, with the partial exception of the Supreme Court, most of the institutions of the judiciary remain in a permanent state of crisis. The complaints usually levelled against other institutions of the state, inefficiency, poor enforcement and corruption, are increasingly applied to the judiciary as well. There are 20 million cases pending in Indian courts, of which 3.2 million are pending in High Courts. It appears that this paradox of growing judicial power on the one hand, and the simultaneous corrosion of the operational institutions of justice on the other is a worldwide phenomenon. During the 1990s, while most observers were arguing that there had been a global expansion of judicial power, many were also arguing that the civil justice system of most societies, measured on fairly minimal criteria of procedural fairness, delays and cost, were in a ‘state of crisis’.5 As editor of what is perhaps the only systematic large-scale comparative study of the ‘crisis of civil justice’ acknowledged: ‘A sense of crisis in the administration of civil justice is by no means universal, but it is widespread’ (Zuckerman 1999: 12). Any assessment of the judiciary as an institution would have to, therefore, explore at least two aspects of judicial power. On the one hand it would attempt to understand the ways in which the judiciary consolidates its independence vis-à-vis the executive/ legislature and comes to be seen as a crucial component of the democratic process itself. On the other hand such an assessment would also have to examine the reasons why the administrative functioning of the judiciary itself is relatively poor. Before proceeding further, however, one needs to enter the important caveat, that one faces something of an empirical vacuum. Most Indian legal scholarship tends to be very descriptive and concentrates largely on what is termed as ‘black letter law’; there has been almost no serious social science investigation into the Indian judiciary. It is symptomatic of this neglect that Rajni Kothari’s classic book Politics in India does not even bother to mention the judiciary. The collection of statistics and relevant information is extremely

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poor. Most courts are in arrears in collecting their statistics, as is the Law Commission. Professional associations like the bar councils do not have adequate data on their own membership, strikes and so forth. The last good studies of the courts as institutions date from the early to mid-1980s.6 Such good scholarship as exists since then has focused largely on constitutional interpretation and even in this domain almost exclusively on religion, women’s rights and affirmative action. The Supreme Court’s own plea in P.N. Eswara Iyer vs Registrar of the Supreme Court has gone unheeded: Counsel at one stage asked whether there was back up empirical research to warrant the assumptions in the amendment [of certain procedural rules], whether facts and figures about the number and nature of wasted review time of the courts and a host of other related aspects were available. No such material is before us now. It is fair to confess that the scientific method of undertaking research and study into public problems as preclude to legislation is lamentably lacking; and court . . . management is currently beyond the ken of scientific research. Where awareness is absent, ad-hocism is inevitable. This more or less sums up the state of research into Indian courts, and rather than presenting a settled argument one is merely making a plea for more research. It is very difficult to formulate the necessary and sufficient conditions under which independent judicial review takes hold. It used to be a common argument that successful constitutional judicial review is caused and required by strong federalism. The logic for this argument was this: federalism requires an institution to protect complex boundary arrangements; each unit of a federation will, despite incentives to deviate, support the creation and maintenance of some central institution designed to identify noncompliance by others. The logic of this argument was never very persuasive. Why would it necessarily be the case that a state involved in a dispute with a central government would support the creation of another arm of the central government to resolve the dispute? As it turns out in many cases, the nature of the federal arrangement has turned on how judicial power is exercised; and

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judicial review has often eroded rather than strengthened federalism. In the case of India, which is, in any event, a more strongly centralized state, one could argue that the nature of judicial scrutiny of the Centre’s intervention in the states has influenced the character of federalism itself. The legislatures and executives have pretty much followed the judicial lead in defining the federal character of the Indian constitution. It has often been argued that the weakening of Indian federalism during the 1970s and 1980s was a result of one-party dominance of the Centre and that coalition governments increase the prospects of federalism. But a simpler explanation implicating the courts can be offered. Arguably, the advisory opinion of the Supreme Court in 1977, which permitted the dissolution of nine state governments before their term had expired, led to the weakening of Indian federalism, where succession after succession of state legislative assemblies were dissolved. Whatever the other controversies surrounding the Supreme Court’s decision in Bommai, there has been, following that decision, greater reluctance on part of the Centre to impose presidential rule on the flimsiest of reasons. Arguably, the Court has made it clearer than before that there have to be ‘substantial constitutional’ reasons for dismissing a state government.7 Even Laloo Prasad Yadav’s misrule in Bihar could not quite pass that test. It seems that the character of judicial review could determine the nature and scope of federalism rather than being determined by it. An analogous argument can also be made about the ‘separation of powers hypothesis’. This argument suggested that constitutions that enshrined a strong separation of powers amongst the various branches of government would also in all likelihood have strong traditions of judicial independence and power.8 The general presumption has been that judicial review in parliamentary systems should be very weak. But this thesis has never been quite able to explain why strong traditions of judicial review and the exercise of judicial power are appearing in parliamentary systems that have not traditionally had a strong separation of powers even when there has been no change in the formal distribution of powers. Second, these arguments do not quite explain the variance over time in the exercise of judicial power. This variance can often be best explained by the actions of the judiciary itself. The

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mechanisms by which judicial review comes to be instituted as a regular practice are often judicial decisions themselves. In India, as elsewhere, it is not simply the formal allocation of powers but an evolving constitutional jurisprudence that has enhanced the powers of judicial review.9 I am not sure we have or can have a general theory of the conditions under which constitutional law will evolve in the direction of asserting greater powers of judicial review. It seems that the degree of independence, especially in democratic societies, that a judiciary has is itself a creation of judicial power. The thought that ‘judicial review causes itself’ is probably as good as any answer to the puzzle of judicial power.

A CONTENTIOUS RELATIONSHIP The questions to ask would, therefore, not be: under what conditions do courts exercise extensive judicial review? The answer to that is more or less when they want to. The question are rather as follows. First, is there any discernible pattern to the exercise of either constitutional review or judicial activism? What are the kinds of issues that occasion the exercise of the judiciary’s power? Second, what enables the exercise of judicial power to legitimize itself vis-à-vis the executive/legislature. The answer to the first question, in the Indian case as elsewhere, is that emerging traditions of rights discourse in courts10 generate strong reasons for judicial review. The emergence of a rights-based jurisprudence is a worldwide phenomenon and can take on strong roots even in the absence of a Bill of rights. But the exact content of this rights jurisprudence has varied considerably. In the Indian case courts— and society at large—have been less devoted to a civil liberties rights-based discourse. Rather, the courts have legitimized such interventions as they have made based largely on the idea that government ought to be forced to intervene in certain areas to achieve ‘substantial goals’, whose content is largely defined through the framework set out in the Directive Principles of State Policy. In doing so, courts have had to strike a balance amongst the competing rights at stake. It is far from clear that courts have evolved any clear criteria or tests to guide competing interests

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(say between ‘environment’ and ‘development’), but the goals of equality have given courts occasion to use their judicial might.11 Court interventions have been widely seen as legitimate, or at least tolerated, because the representative institutions are widely seen as being immobilized, self-serving, corrupt and incapable of exercising either their basic policy prerogatives or their powers of enforcement. Even in comparative terms, the exercise of judicial power is increasingly being seen as not a threat to effective majoritarian rule, but as a response to its ineffectiveness. A serious disaffection with majoritarian institutions of accountability make the exercise of judicial power almost necessary. We are resorting to judiciaries basically because we cannot help it. In India the relationship between the judiciary on the one hand and executive/legislature on the other has often been contentious. The character of judicial activism has varied considerably over time. In the early years after independence the judiciary, much against the wishes of the executive, was seen as wedded to a very traditional and literal interpretation of property rights, aligning itself with the propertied classes and standing in the way of government’s land reform legislation.12 During the same period the judiciary took contradictory positions on the protection of Fundamental Rights. Swearing fidelity to ‘black letter law’, it virtually denied that the Indian Constitution had substantive due process requirements and upheld the state’s powers on preventive detention.13 Yet it also gave serious scrutiny to government regulation of publications. The judiciary was tartly attacked by Nehru for having ‘purloined the Constitution’. The executive’s behaviour was much as one would predict in a parliamentary system. Armed with its substantial majority in Parliament, and self-confidence in its agenda, the executive under Nehru resorted to constitutional amendments as a means of circumventing the judicial interpretation of the Constitution. Formally a happy resolution was maintained: the judiciary was not denied its power to review legislation for its constitutionality; but faced with a recalcitrant judiciary, the government could simply seek to amend the constitution. During the late 1960s and early 1970s the judiciary again was seen as standing in the way of Indira Gandhi’s development agenda. It struck down the government’s scheme for the nationalization

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of banks, the abolition of privy purses, and made the first strong statement to the effect that Parliament could not, even through constitutional amendment, override the Fundamental Rights elaborated in Part II of the Constitution. This claim was later modified to the effect that Parliament could not, through constitutional amendment, override the ‘basic structure’ of the Constitution, and ever since then the judiciary has insinuated itself as the custodian of the basic structure. The High Courts displayed their independence by invalidating Mrs Gandhi’s election on grounds of corrupt electoral practices. Following the proclamation of the state of Emergency on 25 June 1975, hundreds of people were detained under an executive order passed under Article 359 according to which Article 21 of the Indian Constitution was suspended. Article 21 provides that no person shall be deprived of his personal liberty except according to the procedure established by law. Judges in nine High Courts rejected the constitutionality of this order. But in what is now unanimously regarded as one of the darkest decisions in Indian judicial history, the Supreme Court overruled these nine High Courts and put the seal of its approval on the Emergency.14 Mrs Gandhi’s strategy, when faced with recalcitrant courts, was two-fold. On the one hand she resorted to amending the Constitution; on the other she attempted to ‘pack’ the judiciary through supercession and transfers. It is one of the ironies of judiciary– executive relationships during her tenure that while arbitrary executive influence in appointments increased, courts were also formulating far-reaching interpretations of the Indian Constitution that would lay the constitutional basis for limiting the powers of the executive and Parliament in the future. Ironically, the judiciary emerges out of the Emergency as an even more powerful institution. It managed to legitimize itself, once again, not only as an institution of accountability of last resort, but also an institution of governance. The judiciary seems to have taken cues from Mrs Gandhi’s populism and made attempts to recast itself in a more populist mode. The public interest litigation initiatives, which dispensed with many of the cumbersome formalities of court procedure, attempted to give citizens direct access to the Supreme Court. In these cases judges gave even detailed policy prescriptions that they required

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the government to fulfil. For instance, the courts have required the closing down of business because of environmental concern, building new housing for slum dwellers, and even maintaining particular college course. Some of the zeal that lay behind public interest litigation has abated somewhat; but judges still intermittently use the law created during its heyday to pass policy prescriptions. So much of judicial activism in Indian courts is, as will be explained later, tied to the enthusiasm of particular judges that it is difficult to determine whether this abatement in the zeal over PIL is simply a temporary reprieve or a large trend.15 But faced with an immobile and corrupt executive, the judiciary again found itself performing such tasks as supervising the role of executive agencies, especially in matters of criminal investigation. It should be apparent that the Supreme Court of India is a politically significant institution. There is not a single important issue of political life in India that has not been, by accident or design, profoundly shaped by its interventions. The Court itself can be regarded as a powerful actor in Indian politics. Far from being a neutral and distant participant, the courts participate and collaborate in governing India. The political significance of the judiciary is not difficult to demonstrate.16 Most studies of Indian politics pay almost no attention to courts, but disagreement between the judiciary on the one hand, and the executive and legislature on the other have been as important a fact about Indian political life as any. Courts have struck down hundreds of central and state laws; during the first 17 years of its existence, when the Supreme Court was supposedly in its restrained period, it struck down 128 laws. The legislature and the executive have certainly felt its power and acknowledged it. Out of the first 45 amendments to the Constitution, approximately half were explicitly aimed at reducing judicial power. It is true that the frequent resort to constitutional amendments is an attempt to circumvent the courts’ power. On the other hand, the fact that legislatures have never thought it proper to simply ignore court decisions is also extremely significant. Even during the Emergency the government took care to curtail the authority of the courts by legal means rather than by breaching the fabric of the courts’ formal authority. This deference has ensured that even constitutional amendments have not been able to alter the basic structure of the constitution and the formal allocation of powers

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within it. Even with an executive as ill-disposed to the judiciary as Indira Gandhi’s government, and even with a court as supposedly compliant as the Emergency Court, the ‘basic structure’ doctrine articulated in Keshavananda has served the cause of preventing the disturbance of powers within the Constitution.

THE COURTS’ DILEMMA A couple of large conclusions can be drawn from a brief survey of Indian constitutional law. First, the question, ‘who is the final arbiter of the constitution?’ cannot be easily answered. The Supreme Court has declared itself to be such, but for a variety of contingent reasons its authority to override amendments to the Constitution has not been fully challenged since that decision. In parliamentary systems there is no theoretical reason to suppose that simply because courts decide on the constitutionality of a particular matter, that matter ought to be considered settled or removed from the political agenda. The reality of constitutionalism has been that the legislature and the judiciary are likely to remain competitors when it comes to interpreting the Constitution. It is by no means settled who has the final word. The decisions of each are more like one link in a long chain of events that can be played out any number of times. Parliament can pass legislation, the courts can determine its constitutionality, Parliament can try to circumvent the courts by amending the Constitution, courts can pronounce that Parliament has limited powers of amendment, Parliament can . . . and so on and on.17 We have not seen a full-scale assault on judicial interpretation of what the ‘basic structure’ doctrine requires during the 1990s because of the fragmented political system where no party was in a position to dictate terms to Parliament. In the event of any political party gaining enough power to amend the Constitution, it is not clear what the outcome of a judicial–legislative tussle is going to be. If, indeed, at some point any recommendations that the newly constituted constitutional commission might come up with for changes in the Constitution are brought before Parliament, the ability of the courts to enforce the ‘basic structure’ doctrine will be seriously tested. But it bears repeating that judicial supremacy in India is

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not simply a result of a one-time act of constitutional design, but is secured through an ongoing struggle. Second, the courts face a dilemma. The institutional interest of courts is to resolve conflicts over constitutionality while maintaining the legitimacy of constitutional review in the future. Indian judges have, for the most part, been extremely aware of this. Judges seem to routinely try to anticipate the effects of particular decisions on the popular authority of the court. This makes the major decisions of courts, notwithstanding their own selfpresentation, less straightforwardly an application of some high constitutional principle or value. Rather most judgments are a delicate and political balancing of competing values and political aspirations; they seek to provide a workable modus vivendi rather than articulate high values. This is not the place to argue this point at any length, but I would submit the hypothesis that most court decisions can be read as modus vivendis of this sort. Even Golak Nath, arguably the strongest judgment in favour of the sanctity of Fundamental Rights handed down by an Indian court, made a retrospective exception for three constitutional amendments relating to property rights that it might otherwise have invalidated. Similarly Keshavananda, while making a strong statement to the effect that the ‘basic structure’ of the Constitution cannot be amended by Parliament, left the door open by being deliberately vague on the content of the ‘basic structure’. The Mandal decisions simultaneously enlarged the scope of affirmative action, but also put limits on it. Arguably the recent Hindutva decisions, which have been justly criticized for their odd ideological interpretation of Hinduism, can be seen in this light. At one level these judgments reassert the importance of the Representation of People’s Act; at another the Court is reluctant to dismiss a popularly elected government simply because of its ideological views. If one looks upon courts as, despite their assertions of formal powers, facilitating a kind of modus vivendi, then one can more easily explain why courts get involved in some matters and not others. For instance, as far as civil liberties are concerned, courts have been on the whole extremely reluctant to question the presumptive powers of the state in issues like preventive detention and human rights violations. This is because of a perceived sense that Indian public opinion at large shares some of the same

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security syndromes that drive the state to exercise these powers too frequently in the first place. Courts have, with a couple of exceptions, treaded very gingerly on certain classes of religious disputes. First, Indian courts go to unusual lengths to demonstrate that despite calling for reforms of religious practices they are not anti-religion. They have interpreted Indian secularism as itself a kind of modus vivendi rather than as a set of clear principles. Second, courts have on many occasions shied away from taking a clear stand on religious disputes that they see as very clearly controversial. Arguably the fate of the Babri Masjid case is a good example. The case itself has languished in Indian courts for 50 years. When the executive sought an advisory opinion from the Supreme Court, it took two years to deliver one, and when it did it was only to the effect that it was up to the High Courts to decide. The courts have been much keener to supervise executive agencies in corruption investigations than they have been to call executive agencies to account in cases of ‘communal’ violence. In the Indian case the courts’ concern for their own authority has meant a reading of the political tea leaves as it were; the judicialization of politics and the politicization of the judiciary have turned out to be two sides of the same coin. It is not an accident that Indian constitutional law has been relatively unstable, or that the same courts can appear strong and assertive in some areas and not in others. It may be the case that Indian courts have acquired much legitimacy and power not because of the clarity and consistency of an underlying constitutional vision, but because of the opposite. One could interpret all of the courts’ decisions as a modus vivendi, between competing groups, values and aspirations, which is sufficiently indeterminate and open-ended to keep the players motivated enough to play it. In a way a court’s legitimacy rests precisely on the fact that in its attempt at providing a modus vivendi, it has given a sufficient number of parties enough partial victories to give them an incentive to keep on playing the game. If this analysis has any plausibility, one should not too readily assume that there is a simple association between the rise of judicial constitutional review and the emergence of constitutionalism. Constitutionalism is a commitment that the interactions of actors be governed by an authoritative set of rules. But there is no reason for supposing that the authority of any set of rules,

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whether they delineate formal structures of authority or articulate substantive values, can be fixed and insulted from politics simply as a matter of constitutional design. When we claim that some rules carry such authority, we are making a statement less about constitutional design than the fact that there is a consensus in society around those rules. I take it to be the case that for strong constitutionalism to emerge, there has to be a prior overlapping consensus on the values such constitutionalism would embody. Constitutionalism is the result of social consensus, not institutional design and is only as robust as the former. In the Indian case the emergence of constitutionalism is impeded by structural reasons as well. First, enforcement is the Achilles’ heel of all Indian institutions, the judiciary included. The judiciary has justified its own power by claiming that the government does not enforce its own laws. Yet there is little evidence that judicial intervention leads to better enforcement.18 Even in cases where courts were proactive in trying to invite litigation, they were ineffective. As Charles Epps (1998: 71) puts it, ‘The Indian Supreme Court clearly tried to spark a rights revolution—but nothing happened’ (emphasis added). One of the ways in which the courts institutionalize constitutionalism is through a feedback mechanism that affects the legislature and influences public opinion. The legislature uses guesses about the constitutionality of particular legislation before enacting it. I take it to be the case that for constitutional politics to emerge there has to be some relationship, as mediated by the rule making of constitutional judges, between the constitutional rules and the decision making of public officials. Claims about the judicialization of politics would suggest that under certain conditions judges will construct a set of dialogues and collective conversations about the capacities and limits of state power that the legislature and civil society will help perpetuate. It is very difficult to make the case that the judiciary has successfully accomplished that goal. It is not clear that the legislature or the executive has, in any sense, internalized judicial law making. Evidence for this is scarce. There is often a tendency to see the judgments of a court as an artifact of the predilection of particular judges rather than of the court as an institution. This is because of a variety of institutional features of the Supreme Court. The average tenure of a Supreme

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Court justice is relatively short, those of chief justices even shorter; the predilection of judges towards writing individual opinions ad nauseam arguably muddies the law more than it clarifying it. Even in the celebrated Keshavananda decision, the judgment runs to over a thousand pages, with 11 opinions, and as one scholar has rightly written, ‘the achievements [of Keshavananda] could not obscure the confusion generated by 11 opinions. . . . A more dangerous example of the dangers of multiple opinions to law and democracy in India would be difficult to find’ (Austin 1999: 276). A further institutional feature of the Indian Supreme Court prevents the emergence of enduring constitutionalism. There is a widespread consensus that the jurisdiction exercised by the highest court should always be exercised by the full court (Rao: 219). In India, under Article 145(3), a ‘substantial question of law’ arising out of either a reference made by the President or involving an interpretation of the Constitution should be decided by a Bench consisting of a minimum number of five judges. While the Court adhered to this mandate during the 1950s and 1960s, more and more cases involving constitutional interpretation are being decided by smaller Benches. There have been many instances where small Benches of three judges have declined to refer matters to larger constitutional Benches19, yet their judgments have had the effect of becoming significant interpretations of the Constitution. The Court’s own directive has been that precedents set by larger Benches are more binding than those set by smaller ones. Yet it seems that it has become a frequent practice for smaller Benches to override precedents set by larger Benches even when the precedent involves as substantial a case as Keshavananda.20 This feature of the Court’s practice has the result of leaving lower courts in a bind about which Supreme Court directive to follow: the most recent or the one articulated by a larger Bench? A firmer adherence to the principle that constitutional matters should be decided by larger Benches would help the clarity of the Court’s own constitutional interpretation. It is partly with this problem in mind that proposals have been formulated to either have two courts—one appellate and one constitutional—or at least to have two jurisdictions. The last time this proposal was canvassed, in 1979, it was rejected by the bar,

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largely because its members thought it was a ploy by the government to pack the courts. But there is certainly enough evidence to suggest that the practice of hearing cases in Benches has considerably affected the clarity of constitutional principles.21

JUDICIAL INDEPENDENCE

AND

APPOINTMENTS

If there ever was an instance of the judiciary creating its own powers out of itself, the recent evolution in the method of appointing justices to High Courts is surely it. The Constitution determines the power and the composition of the judicial branch. The independence of the judiciary is made possible, though by no means guaranteed, by its constitutional position. During the Constituent Assembly debates the idea of an independent judiciary had widespread support. As Ambedkar put it, ‘There can be no difference of opinion in the House that our judiciary must both be independent of the executive and competent in itself. And the question is how these two objects could be secured.’ One of the key elements in guaranteeing the independence of the judiciary is the tenure, appointment and transfer of judges. The debate over which method of appointment would best secure the independence of the judiciary was long and protracted with a variety of proposals taken up for consideration. The debate has not abated since. After due consideration of a range of alternatives, the assembly agreed upon Articles 124(2) and 217(1). Judges would be appointed by the President in consultation with such judges of the Supreme Court and of the High Courts in the states as the President may deem necessary. For an appointment of a judge other than the chief justice, the chief justice of India must always be consulted. Judges of the High Courts and the Supreme Court can be removed only by an order of the President that is approved by a majority of the total membership and a majority of not less than two-thirds of members present and voting in each house of Parliament. The primary aim of this procedure seems to have been this: on the one hand, it avoids a cumbersome appointments process by effectively shutting out the legislature or any other large body; on the other, this procedure would ensure that judicial appointments are made on the basis of a consensus between the executive and the judiciary. It is very clear from the debates that

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the founders were suspicious of the idea that appointments to the judiciary be made solely by the executive; nor were they sanguine about legislative involvement. What is even clearer, however, is their suspicion of appointments made solely by the judiciary. The uneasy compromise that Articles 124(2) and 217(1) reflected would be sustained more by convention than by the clarity of the injunction. The formula still nominally survives though much confusion surrounds the little word ‘consult’. In the now notorious First Judges case, this was taken to mean that the chief justice had no veto power over the appointments; the Second Judges case and the Third Judges case reversed this ruling to effectively give the judiciary almost complete control over judicial appointments. The Second Judges case reinstated the chief justice’s veto power; the Third clarified that the chief justice should act as part of a collegium that consists of the four seniormost judges of the Supreme Court. Under this ruling the executive can ask the collegium consisting of the Chief Justice and four other justices to reconsider any of their recommendations. But if the collegium unanimously reiterates its recommendation, then the appointment must be made. Arguably the Second and Third Judges cases preserved the spirit of the Constitution in that the Court did not introduce any method of selection that had been considered and rejected by the Constituent Assembly. Nevertheless, it could be argued that it has given the judiciary more power than was contemplated by the Assembly. Even half a century after the promulgation of the Constitution, the basic matter of judicial appointments is far from settled. The question of judicial power and independence is open to negotiation and renegotiation between the executive and the judiciary. The basic thrust of the recent Judges decisions has been to secure greater judicial power and autonomy over the executive. On the other hand, it can be argued with some justice that the net effect of such judicial independence has been to shield judicial decision making with respect to appointments from any serious and systematic scrutiny. It is very difficult to get a handle on the question of what difference executive interference makes to the quality of judicial appointments. Each Law Commission has, from as early as 1954, alleged that there has often been undue executive interference in

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the appointment of judges. This is widely believed to be the case. Of course, at one level it is difficult to prove executive influence in any strong sense of the term. But the unspecified nature of many charges makes one suspect that the picture of executive misdemeanour may have been overdrawn, or is largely driven by the power of a few examples and sustained as much as by the public presumption against the executive and the judiciary’s desire to legitimize itself as it would be by the substance of the charges. One study into the appointment of judges to the Supreme Court found that by and large routine criteria of seniority were applied for elevation of judges from the High Courts to the Supreme Court.22 In an affidavit filed in the Second Judges case, which practically reinstated the chief justice’s veto power on judicial appointments, the government submitted that out of 575 appointments made since the First Judges case, which allowed the executive more leeway, the government had rejected the opinion of the chief justice of India in only a handful of instances. The public and the bar alike repeatedly lament the decline in the quality of judicial appointments and certainly there is anecdotal evidence galore for the ‘declining quality’ of judges. But a couple of points are worth making. These are also accompanied by a general perception that the quality of the various bars—measured by legal ethics, professionalism, legal skills, educational attainments—has also generally declined. In this sense the claim of ‘decline’, whatever it means, is a claim about the legal profession as a whole and not just judges. Second, it is not clear that this decline is a result of executive influence rather than the judiciary’s own internal corrosion. After all, even during the heyday of the Emergency, when executive interference was supposedly at its highest and good senior judges were routinely superseded in favour of judges whose philosophies and personal inclinations ostensibly comported more with the government’s own, it is less than clear that the executive produced ‘bad appointments’. To take just one example, Justices Iyer and Bhagwati were elevated to the Supreme Court during Mrs Gandhi’s tenure. Nobody has ever accused Justice Iyer of being a lackey of the government; and although Justice Bhagwati did abase the judiciary by penning a flattering public letter to Mrs Gandhi on her return to power in 1980, his contributions to giving public interest litigation a good

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deal of momentum were widely lauded at the time. To raise this example is not to deny the fact that many executive-initiated appointments have been extremely controversial. It is only to suggest that simply giving occasional examples of the executive’s indefensible behaviour is not enough to sustain the claim that the executive’s role in judicial appointments should be reduced. After all, it is not clear that judicial control of appointments has had much success in reducing the controversy over appointments. There has been at least as much litigation regarding transfers and appointments of chief justices to various High Courts after the judiciary took over control of appointments. Indeed, a simple fact should give one pause: at the moment there are 180 vacancies for High Court judges. Despite rules that enjoin that the judicial collegium must recommend filling a vacancy six months before it arises, the President has not yet received even the first recommendations. Both of these developments suggest intense intrajudiciary conflict, which has hampered the judiciary’s ability to produce appointments. Of course, one ought not to conclude that the executive is to be trusted more than the judiciary. My point is rather that judicial preferences in appointments have escaped systematic scrutiny. If the executive does not deserve glory for the appointments it made, the judiciary’s treatment of itself is also not a cause for self-congratulation.23 But there is a deeper point underlying the continuing controversy over judicial appointments that applies to a wide range of government institutions. Both executive and judicial appointments will remain objects of controversy for the simple reason that there are no settled criteria for what counts as good judges; or at any rate there are no criteria that the judiciary itself publicly defends or articulates, beyond the level of platitudes. Nor are there any public forums or bodies in which this debate can be conducted. There are no public reasons given for or against judicial appointments. Take the matter of transfers, for instance. Under the current dispensation, judges can be transferred from one state High Court to the another. The Venkatachaliah Commission, which oversaw the largest transfer of judges, had insisted that the transfers be in the ‘public interest’. But there is seldom any way of determining whether transfers of any particular judges, even when undertaken by the judiciary, are punitive or in the public interest.

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It is a measure of the Court’s own confusion and hesitation on this issue that almost five decades after the Constitution was promulgated, the question of the transfer of judges remains murky. While transfers began under Indira Gandhi as a mechanism for punishing judges who did not follow the government’s agenda, it was soon recommended as a desirable policy goal. Even the Janata government that followed after the Emergency sought, much to the regret of eminent judicial authorities, to continue with this policy. Two primary reasons were given for this. The first was that many High Court judges had developed close connections during their years of practice with members of the bar; often their own families continued to practice in the same jurisdictions. These connections, it was argued, were impeding the judges’ ability to adjudicate impartially. Members of the bar were exploiting their connection to seek favours from the courts on every issue, from interim orders to final judgments. The transfer policy was, in part, a sort of anti-corruption measure. Second, it had long been suggested that it would greatly benefit the judicial process if at least a significant percentage of judges in any given High Court came from out of state. This would help create uniform judicial standards across the country by providing a mechanism for the transmission of judicial practices and ideas from one state to the other. The Law Commission had recommended that this goal of having out-of-state judges be accomplished more by new appointments than through transfers. The simple point is that there is very little empirical information on whether these goals were in any way advanced by the policy of transfers. The Court itself seems to have believed this only intermittently, and transfers have come in fits and starts rather than through any regularized process. At the moment there is a virtual moratorium on transfers of judges except if they are being elevated to become chief justices. The Court still holds the view that the chief justice in any state should be from out of the state. But this moratorium on transfers is voluntary rather than binding. It has apparently come about as a conjunction of two desires. Chief justices are reluctant to avoid unnecessary controversy by opening the transfer can of worms. There are also significant sections of the judiciary that feel a policy of transfers has adversely affected the recruitment of judges. It has reduced even

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further any incentive that top members of the bar might have for becoming judges, and this fact alone outweighs any possible gains through transfers. But the whole controversy over transfers has operated in an empirical vacuum. The arguments for and against it were entirely a priori. The crucial point is that it is not clear how one even begins to debate this question. The simple question is: who shall hold the judiciary accountable for the nature and quality of appointments? This question was insistently raised after the President of India was reported as having suggested to the chief justice that ‘due consideration’ be given to persons belonging to weaker sections of society like Scheduled Castes and Scheduled Tribes (and women) who are the beneficiaries of compensatory discrimination in other areas. It seems to me that the President was firmly within his rights to make such a request; the courts have on occasion, ‘consistent with the requirement of merit’, sought to provide for an equitable regional or religious representation. The judiciary’s appropriation of the right to appoint judges does not in the least bit abate questions about the legitimacy of its choices, and the judiciary seems to have avoided rather than confronted the question.

IN PLACE

OF A

CONCLUSION

This paper has argued that the Supreme Court has been extraordinarily creative in its interpretation of the Indian Constitution. It has secured its independence from the executive and has exercised its powers of constitutional review. The Supreme Court in particular carries enormous authority. But despite this, constitutionalism remains a fragile aspiration. For one thing, the courts have used their powers to facilitate a modus vivendi rather than articulate clear constitutional principles. The terms of this modus vivendi are greatly determined by the courts’ estimate of prevailing political fissures and is likely to shift as the judges’ interpretation of Indian public opinion shifts. The institutional weakness of the Indian judiciary make it unlikely that judicial principles will carry the due weight of authority in society at large any time soon. The ‘constitutional rules’ will endure less because they are internalized as values that determine behaviour, than because they provide

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enough occasions for discretionary manipulation to allow the show to go on. The appalling weaknesses of the Indian civil justice system, below the level of the Supreme Court, and the difficulties of reforming them will only exacerbate this predicament, not resolve it.

NOTES 01. India’s judiciary is, with some exceptions, a single three-tier system, with the Supreme Court at the apex. Each state has a High Court and district-level courts. The Supreme Court, established in 1950, as a successor to the Federal Court, has broad powers. Under Article 131 it exercises original jurisdiction in cases involving the government and appellate jurisdiction in a variety of cases. Under Article 132 it rules on cases involving constitutional interpretation; under Article 133 it exercises jurisdiction over civil cases that involve a substantial question of a law of general importance. In addition it is an appellate court for some criminal cases, it has the power to grant special leave to appeal, has writ jurisdictions over questions of Fundamental Rights and has the authority to issue advisory opinions. 0 The High Courts act as courts of first and second appeals in civil matters; in addition they have extensive writ jurisdiction and act as superintendents for subordinate courts. 02. One scholar describes the Indian Supreme Court as ‘the most powerful court in the world’. An American scholar of comparative law, Charles Epps (1998) writes, ‘The supposed activism of the American Supreme Court seems almost conservative by comparison to the Indian Court’s leading decisions.’ 03. The evolution of constitutional law on this matter has been complex. In Shankari Prasad vs Union of India ([1952] SCR 89), the First Amendment Act, Article 31-A and 31-B were challenged on the grounds that no amendments could take away or abridge Fundamental Rights. The courts ruled that amendments made in exercise of the constituent power of Parliament were not subject to Article 13 or the Fundamental Rights they sought to amend. Also see Sajjan Singh vs State of Rajasthan ([1965] 1 SCR 933). Both these judgments were overruled in I.C. Golak Nath vs State of Punjab ([1967] 2 SCR 762), which invalidated any parliamentary amendments that had the effect of eroding Fundamental Rights. But this judgment had the curious anomaly that it would only have prospective operation. This allowed the First, Fourth and 17th Amendments, which would otherwise have been invalidated, to stand. In Keshavananda Bharati vs State of Kerala (AIR 1973 SC 1461), a landmark judgment, Golak Nath was overruled. This judgment held that Fundamental Rights were subject to amending power, but that Parliament did not have the power to alter the ‘basic structure’ of the Constitution. This was done largely to prevent a strict interpretation of property rights in Part II to stand in the way of the Directive Principles of

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04.

05. 06.

07. 08.

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State Policy. But the judgment, nevertheless, abridged Parliament’s power to amend the Constitution and was used, in Indira Gandhi vs Raj Narain, to strike down the 39th Amendment. See in particular, Vineet Narain vs Union of India ([1988] 1 SCC 226). In this case the Supreme Court claimed the power to ‘fill the void in the absence of suitable legislation’ and to provide ‘a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field’. The titles of the following books are indicative: Tate and Vallinder (1995) and Zuckerman (1999). See Baxi (1983). Particularly impressive is Dhavan (1980) and Galanter (1989). A volume, Fifty Years of the Supreme Court (Verma and Kumar 2001) has been released. This deals primarily with developments in constitutional law. S.R. Bommai vs Union of India ([1994] 3 SCC 1). For instance, John Ferejohn (1995: 208) argues that: Nations with traditions and practices of unrestricted parliamentary sovereignty would tend to have judges that are more or less neutral appliers of law to cases. Conversely, those nations that restrict parliamentary sovereignty, might be expected to develop traditions of judicial independence and power. Judges in parliamentary systems would not emphasize or notice the discretionary or interpretative elements of their decisions. They would see themselves as parliamentary heads. . . . One would expect this to be true regardless of the history of the legal system.

It is not clear that this hypothesis is empirically sustainable. 09. Note 3. 10. This can also be an artifact of the institutional anomalies of Indian law in some instances. For example, most environmental litigation is carried out in terms of ‘rights’ because the system of tort law is relatively weak. 11. Even the Keshavananda decision, while designed to protect the right of the courts to nullify constitutional amendments, was intended to provide greater justiciability to the Directive Principles of State Policy than to protect Fundamental Rights as was the intent in Golak Nath. Almost all of the Supreme Court’s celebrated ‘activist’ decisions—a constitutional right to a minimum wage, a right to counsel, a right to livelihood, and broad remedies against environmental destruction—stemmed from a concern for equality rather than civil liberties. Indeed, civil liberties concerns have been palpably weak in Indian Courts. 12. On property rights this period also saw contradictory trends. The Supreme Court, for the most part, seems to have sided with the government on issues relating to property rights, except in a few high-profile cases. 13. In Maneka Gandhi vs Union of India (AIR 1978 SC 597) the court asserted substantial due process rights. 14. ADM Jabalpur vs Shivakant Shukla (AIR 1976 SC 1207). The four majority judges of a five-judge Bench were Chief Justice Ray and Justices Bhagwati, Chandrachud and Beg. Justice Khanna wrote a famously strong dissent.

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15. For instance, Justice Kuldip Singh alone was associated with more environmental activism than the entire judiciary put together. See, for instance, 1996 Shiv Sagar Tewari vs Union of India (SCC 558). 16. One of the crucial areas in executive–legislative relations is the power the courts have over stigmatizing or delegitimizing the behaviour of particular politicians. The fact that Mrs Gandhi was accused of corrupt electoral practices meant very little until she was pronounced guilty by the Allahabad High Court five years after the complaint was first filed. Recently, the Supreme Court has passed strictures against individual politicians for abusing their discretionary powers when in office and has even gone to the extent of supervising investigations into their doings. But while such judicial intervention in discretionary power and oversight of politicians have elicited groaning, they have not yet elicited fear. In part because judicial application of these norms has been intermittent and episodic; it provides a possible opportunity for politicians to get rid of their rivals than an assault on the powers of the political class as a whole. 17. Perhaps something like this is now under way, though not with respect to constitutional amendments. Parliament passed the Muslim Women’s Bill to override the Supreme Court’s interpretation of the Cr. PC in Shah Bano. In a spate of recent judgments the courts seem to be restoring the situation that existed prior to the Muslim Women’s Bill. 18. As far as I know there is no study of enforcement of judicial decisions. 19. Gujarat Steel Tubes vs Gujarat Steel Tubes Mazdoor Sabha ([1979] SC 1914). 20. Counsel Ashok Desai had argued in the Hindutva cases that the courts were unfairly disregarding their own reasoning in Bommai. For a more solid instance of the court disregarding judgments made by previous larger Benches, see P.A. Shah vs State of Gujarat (1986 SC 486). 21. Such an argument has also been made by Nariman. 22. Gupta (1995: chapter 3). This is the only statistical study available of the backgrounds of judges elevated to the Supreme Court. Of the 69 appointments studied, less than half of those elevated were chief justices; even in cases where judges were superseded, the supersession never went beyond the fifth seniormost judge of a particular High Court except in two cases. One of the juniormost judges to have been elevated was—surprise, surprise— Krishna Iyer. 23. Austin (1999). Chapter 25 gives all the sorry details of intra-judicial manoeuvring.

REFERENCES Austin, Granville. 1999. Working a Democratic Constitution. New Delhi: Oxford University Press. Baxi, Upendra. 1983. The Supreme Court in Indian Politics. Delhi: Eastern Book Company.

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Dhavan, Rajeev. 1980. Justice on Trial: The Supreme Court Today. Allahabad: A.H. Wheeler. ————. n.d. The Supreme Court Today. Allahabad: Eastern Book Company. Epps, Charles. 1998. A Rights Revolution. Chicago: Chicago University Press. Ferejohn, John. 1995. ‘Law, Legislation and Positive Political Theory’, in J.S. Banks and Erik Hanushek (eds), Modern Political Economy: Old Topics, New Directions. Cambridge: Cambridge University Press. Galanter, Marc. 1989. Law and Society in Modern India. New Delhi: Oxford University Press. Gupta, Vijay. 1995. Decision Making in the Supreme Court of India. Delhi: Kaveri Books. Kothari, Rajni. 1970. Politics in India. New Delhi: Orient Longman. Nariman, F.S. n.d. ‘The Growing Uncertainty in Law: How Consistent are the Decisions of the Supreme Court’. n.p. Rao, B. Shiva. n.d. The Framing of India’s Constitution: Select Documents, Vol. III. Tate, C. Neal and Torbjorn Vallinder (eds). 1995. The Global Expansion of Judicial Power. New York: NYU Press. Verma, S.K. and Kusum Kumar (eds). 2001. Fifty Years of the Supreme Court. New Delhi: Oxford University Press. Zuckerman, Adrian (ed.). 1999. Civil Justice in Crisis. Oxford: Oxford University Press.

12 A ‘LOOSE’ DOCTRINE K.C. Pant

THE BOTTOM LINE

W

hen my friend Pran Chopra approached me and discussed this seminar, I said to him that maybe one should concentrate more on the health of democratic institutions at the moment than on this debate, which has been going on since the 1970s, and I happened to be there when it began. That was the year of the Golak Nath case, and immediately a fierce debate ensued, which for some time remained the focus of political debate in the country. In 1971 came the 24th Amendment, which amended Article 368 of the Constitution to put at rest the question whether Parliament had absolute power to amend the Constitution. Golak Nath raised the hackles of many people, and Article 368 came after that. Then, of course, came the Keshavananda Bharati judgment, to the best of my recollection in 1973, when I was probably in the Home Ministry. The question that was thought to have been settled was reopened. The debate was again fierce, and if one wants to understand the reason why the debate was so heated at that time one would have to look at the changes in the political landscape in the late 1960s and the early 1970s. Till 1967, that is, during the first 20 years of independence, the same party had been ruling at the Centre and in the states. The working of the federal system also was affected by this fact. In

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1967, the Congress lost power in many of the states. The party was also split. Thereafter there was realignment of political forces in the country. The ideological content of this debate became much more pronounced, and that had much to do with the politics of the day. Now, since then over 30 years have passed and in this period we have seen so many changes, and in a sense the debate has become today perhaps a little more, what I shall call, reasonable, because I remember that in those old debates people were not prepared to listen to each other. It was all in black and white. Either you were on one side or the other, and the kind of speech Justice Ahmadi has made would not have been perhaps possible at that time because passions ran so high. But so far as the kernel of the debate is concerned, so far as the essential issues are concerned, they remain, and they were raised today by both Justice Ahmadi and Pran Chopra. On the one hand was the question whether the framers of the Constitution put any limitations on Parliament, or on the constituent powers of Parliament if you like, to amend the Constitution, particularly in the light of Article 368. On the other hand was the question whether the Supreme Court was not justified in protecting what it considered to be the basic features of the Constitution. The question whether we should make such features immune to amendment remains the essence of this debate. I think I should read out the Article because its language does not leave much scope for conjecture. Clause 1 of Article 368 says, ‘Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend any provision of this Constitution in accordance with the procedure laid out in this Article.’ Now this procedure, as you all know, is different from the normal majority procedure in Parliament, and as it is worded it excludes nothing from the scope of Parliament’s power to amend. The other side of this argument has been put forward in a very cogent manner by Justice Ahmadi. And the fact of the matter is, apart from the very narrow majority by which the Supreme Court passed the judgment, a majority of one—7:6, as I remember—even after that legal luminaries have been divided on this question. It is not as though all of them have taken one side or the other. There have been shades of various opinion, but broadly

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speaking there has been support for both these positions. I have one reason to congratulate and commend this effort by Pran Chopra and by Dr Mathew that today this debate is being held in a calm atmosphere, and today the whole thing can be looked at not only in terms of pitting the Supreme Court against Parliament, which I really think is not the way this problem should be looked at but, as Justice Ahmadi and Pran Chopra have suggested, ultimately it should be looked at in terms of how best the democratic institutions of this country may be strengthened. That is the bottom line.

SUPREMACY

OF THE

CONSTITUTION

Pran Chopra has already spoken on the supremacy of the Constitution. We have a constitution that we may describe as quasi-federal or by any other name, but which is an elaborate constitution that confers powers on both the Centre and the states. The states have not come together to form the Union as in the United States. It is the Constitution that has formed the Union as well as the states, and that basic fact has got to be recognized. It has certain fundamental implications for the functioning of the whole system. And when we look at the nature of the working of that federal system in relation to the working of the Constitution, then you have to see that the Constitution has not come in the way of the ebb and flow of the political forces in the country in changing the relative powers of the Union and the states. You look at the picture prior to 1967 and you see the preponderance of one party both at the Centre and in the states, and you look at the position today and you find that many of the regional parties have a big say in the central government and are able to influence the decisions of the central government. But there are limits to which they can go, and the limits have been put there by the Constitution itself. If those limits were not there regional parties may even try to compel the central government to do things that may not be in the national interest. So the flexibility of the Constitution has been one of its strongest features and that is why we call it a living constitution, a phrase which Justice Ahmadi has also used.

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The fact remains that Members of Parliament and members of the Supreme Court and the judiciary take an oath to protect and preserve this Constitution, and they are all bound by that oath. So in that sense the Constitution does enjoy a kind of supremacy. That does not mean that the functioning of the Supreme Court and of Parliament is not fundamental to the functioning of our polity or our system. They are key organs of state under our Constitution. Justice Ahmadi spoke of the Preamble and Part III and Part IV of the Constitution. The Constitution lays down the principles and the procedures through which the Indian state can navigate various currents and undercurrents of a changing political situation, of changes in our society, and these socio-economic changes are partly generated by the objectives of the Constitution itself. And that is why, if one judges the Constitution’s flexibility, one greatly admires the founding fathers for their ability to see that this vast country with all its complexities has to be provided enough elbow room as it moves along, enough room for change also depending on how circumstances change. Justice Ahmadi mentioned something of interest. He said that states can be made smaller and bigger, and Parliament can alter the boundaries. However, he said this was something for developmental needs. But the fact of the matter is that while development is effected the impulse is political in almost all cases. Except during the work of the States Reorganization Commission, states are created, expanded or reduced in size purely out of political considerations, and those political considerations are based on the aspirations of local people. They are not based on merely the political fortunes of the parties, but political aspirations gain a certain momentum, and become too strong for any one to resist them, and new states are formed. So all these things have been provided for. If the Centre did not have the power to do this, we would run into all kinds of problems. Anyway, the fact is that in the last 50-odd years the Constitution has been amended so many times, and changing requirements have called for so many amendments, not only because of the international conventions or covenants which Justice Ahmadi spoke about but also because of the changing requirements of our own polity, because of various socio-economic factors, even

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because of political factors. Now one has to consider who is likely to understand the forces at work at the ground level and the need for such amendments. I mentioned the states. The formation of states is the result of pressures from below. Could the Supreme Court ever feel those pressures directly? But Members of Parliament are continuously subjected to those pressures. If, suppose, some social legislation creates problems—and I do not need to spell it out; Justice Ahmadi knows what I am talking about—then who is likely to understand clearly what kind of forces have been released on the ground? Not the Supreme Court; but only Members of Parliament, members of the legislature of the area. They have to go and explain their own policies as well as the content of the laws that they have been parties to. To that extent, I would submit to Justice Ahmadi, they are answerable and they are accountable. This is what makes them accountable and answerable. It has some negative aspects also. Populism is one of them. Populist policies are adopted because of this. But this is also a function of democratic functioning. One can frown at populist policies, but populist policies are by definition policies that people like, and therefore while standing for elections no candidate is likely to say ‘I will reject policies which the people like in favour to those which they do not like.’ And that is the essential challenge of development in this country, that you persuade the people to accept policies, including taxation, which they may not like but which are in their long-term interest. Any weakening of the democratic structure will make it impossible to affect the change required through persuasion, and democracy, ultimately, is persuasion. So this is one basic point which I think we have to understand. Now a reference is made to the tide of democracy. What happened in Germany? It is true that in Germany, through a process, Hitler took over and so on and so forth. But what was the Supreme Court doing? Was it able to stop it? Was the Supreme Court in West Germany any less conscious of what was happening? Was even the civil society not aware of it? Was the huge industrial structure not aware of it? There was a feudal structure in Germany. They were all aware of it. Yet the political force released was too strong, right or wrong. I certainly think that it was wrong, but who am I to say that now? I cannot stop it. No one was able to stop it.

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A ‘LOOSE’ DOCTRINE I do not think changing to the presidential system is undemocratic. I am not getting into that topic, but certainly taking democracy totally away could be a total negation of what you stand for. But if that happens, let me assure you, it will happen because of forces that we may not be able to resist, not because of certain laws that we may or may not pass. I fully agree that we need to protect the essential features. But the protection lies in building ramparts in the minds of the people which will not be crossed. And that is the ultimate sanction for all political parties, for all democratic institutions. So long as the people support them and those ideas, and see that they are in their interest, those principles will be protected. This I think is something we have to understand fully. Otherwise we will tend to attach too much importance to form and not enough to substance. Now, Justice Ahmadi has said and Pran Chopra had repeated that the basic features have not been defined. In fact, Justice Ahmadi has gone beyond that. He has called them loose. That is a strong word. If they are loose, then even if you think that sometimes Parliament can be bamboozled into passing loose laws, can the Supreme Court be bamboozled into pronouncing a doctrine that is loose in your view? I asked Pran Chopra when we were discussing this, ‘What are the limits? Which are the basic features?’ because I do believe that we should be equally committed to protecting basic features, for instance, the ones Justice Sikri mentioned. But then later on more were added, and today they are open-ended, undefined. So the Supreme Court also must come under scrutiny. After all, it is the Supreme Court that has adopted a doctrine without defining its limits. And suppose somebody raises this question then the Supreme Court is not likely to entertain it. I agree with Justice Ahmadi that such conflicts do arise in all democracies and in any dynamic system in which various powers are given to various organs, and to some extent they overlap and there is always a human tendency of one to encroach on the field of another. So a balance has to be struck. I am not worried about that. I think I would agree with him entirely that such conflicts do arise and they need to be resolved, and I do not think we need to be worried

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much on that count. But one has got to go ahead and see that this approach is carried forward. For this one has got to accept the basic supremacy of the Constitution and the constitutional scheme it spells out. If not, then you can get misled into by-lanes which will not take you to an objective. So once we accept that, then various approaches are possible. Pran Chopra has suggested various approaches. The essence of those is, ‘All right, you define the basic features and then include them in the Constitution.’ Let it be an open process. Let it be accepted by Parliament also’. That changes the whole debate and it achieves the objectives. It is feasible, and how it is to be done is a matter which I think should be considered by perhaps a group of constitutional experts, parliamentarians and others who could sit together and work it out. It is not something that is beyond human ingenuity. I really think that with people like Justice Ahmadi there, this kind of exercise can be carried out.

DECLINE

OF

INSTITUTIONS

But if you will permit me, I would point out that the whole debate 30 years ago was based on an assumption that our democratic institutions are very strong. At that time they were very strong. And today we are discussing this at a time when our democratic institutions have lost their shine. Can we as a matter of course today assume that all our constitutional and representational institutions are functioning as people expect them to function? I do not think that anybody would make that claim. So in a sense this aspect has become more important even than the one we have been discussing. We have to return to the basics in a way, and that is how to strengthen the basic machinery. Electoral and political party reforms have been discussed times without number, and yet we are sitting here and making some very useful suggestions. And many of you have certainly written about it, others have written about it, but one has to get down to doing something on those issues. Similarly, the functioning of the parliamentary institutions has been spoken about, and I will come to that a little later. The ombudsman has been spoken about. The Lokpal Bill has come up so many times. But somehow it does not move forward on one excuse or another.

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In respect of the judiciary, Mehta has said many things. I don’t want to repeat all that, but one aspect makes me feel a little uneasy these days: that judicial orders are not always complied with by state agencies, and sometimes they have to haul up chief secretaries and so on. This is not right. State agencies are obliged to comply with those orders because they have to uphold the authority of the judiciary. And on the other hand, judges must be much more tolerant of the right to criticize them, because judicial conduct is coming in for a lot of criticism. And unless the judiciary is prepared to attach some value to criticism from those who have actually experienced the processes of judiciary, I think we will not move forward in this. In mid-September 2005, a meeting took place between Chief Ministers and Chief Justices. After the meeting, the Indian Express said, For the conference of Chief Ministers and the Chief Justices, the government had proposed judicial accountability as one of the items to be discussed. That proposal has mysteriously disappeared from the latest agenda. Last month the government’s draft agenda focused on four items: modernisation of courts, decongestion, alternative dispute resolution and service condition of judges, including their accountability. But in a note circulated on the eve of the conference, authorised by the Chief Justice of India, this item has been abridged as service conditions of judges. Now I need not perhaps tell you what service ‘conditions of the judges’ must have covered. I have some idea about that. But I do not want to repeat it. In his speeches the Prime Minister has talked of delay in the disposal of cases. He has mentioned the growing corruption among certain sections of the judiciary. This is again within quotes. And he has suggested that judiciary itself should set up a mechanism to ensure accountability. And this I thought was a very sensible and very sound proposal. The Chief Justice has warned that there would be no place for the corrupt and indolent in the system. Again I am quoting. But he did not really respond to the Prime Minister’s suggestion that there should be a credible mechanism

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for accountability. And to my mind that goes to the heart of this matter. He says this is going to be the year of excellence of the judiciary. Wonderful. But to whom are they accountable? The judiciary is the one institution that is not accountable to anybody. When I spoke to a Chief Justice of the High Court in Delhi, he tried to put matters right. It is not as though he did not do anything. But in the normal course so. . . It is not easy to specify an output for judges and so on. I can understand that. I can understand also it is not easy to say, ‘All right, you dispose of the case in three months.’ But what I do say is that in other countries following the same principles of jurisprudence, courts can dispose of cases within a relatively short time. Why can’t we? But it can happen only if there is some answerability and accountability.

THE STATE

OF

PARLIAMENT

I do not want to go into governance. That will take us into a long discussion. But I assure you that governance is also going to be a very important factor because the executive also is judged by the performance of the cutting edge of administration, and today it has acquired a bad name. And again (I do not shy away from that particular truth) Parliament is an institution that has attracted a lot of adverse comment, not as strong as Pran Chopra’s but nevertheless fairly strong. It is not only in the course of the last few years that this has happened. In the 1960s and 1970s the average number of days in the year that Parliament sat was 138. Now it has dropped to below 80. And as for the time lost due to disruptions: it was 5 per cent in the 11th Lok Sabha, close to over 10 per cent in the 12th and then to over 20 per cent in the 13th. Of course, the 14th has just begun, but in the first session it was over 50 per cent, I think. This is a very serious matter, and Fali Nariman has came up with a piece of legislation. I hope they will adopt it though I doubt it. But I certainly would support it. Given the condition of Parliament, I have no hesitation in saying that these are only symptoms. The malaise is much deeper in terms of criminalization of politics, in terms of the role of muscle and money power in the functioning of politics, in elections and so on. But again, I would say if the judiciary had been able to deal with

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the cases of tainted politicians quickly, even that would have applied a big corrective. Now politicians are interested in not having their cases dealt with quickly. But does the Supreme Court have enough control over the subordinate judiciary to be able to see to it that such cases are expedited? Ultimately, as I said earlier, I think we all have got to put our heads together. Political parties also have got to do it. I think political parties should not give tickets to criminal elements. It is their responsibility, and if they deny them party tickets, things will change. But seeing the latest tickets, I do not see any evidence of this. So this is how slowly we are getting into a situation that I would call very, very uncomfortable, and in which the whole system is today being weakened from within. So I would be very happy if, as a result of this seminar, this process could be carried forward to look at the basic problems, to have some forums where such issues could be discussed, and since there are important members of civil society who have assembled here, they could strengthen the hands of those within the system who are wanting to correct it. There are enough who do not want to be corrected, but there are still some who would like to be. Maybe then we can move forward, because we cannot afford to allow this problem to fester.

13 A JUDICIAL COMMISSION? Ramaswamy R. Iyer

I

share Pran Chopra’s discomfort with the ‘basic features’ doctrine, but his argument goes beyond that specific issue. He also raises questions about the limits of ‘interpretation’ and the steady enlargement of its own role by the Supreme Court. Before proceeding further, I should like to draw your attention to another piece of writing about the Constitution, namely, R.C. Jha’s Cry of the Indian Republic. Like Pran Chopra, Jha also says that in India the Constitution is supreme; he too questions the basic features doctrine; and he too thinks that the Constitution has been misunderstood and misinterpreted by all—presidents, prime ministers, Parliament and the judiciary. However, he goes further. He has a purist view of the Constitution and holds the original text as finalized in 1949 and adopted in 1950 as sacrosanct. He questions not only judicial interpretations that amount to reading into the Constitution things that are not there, but also Parliament’s power of amending the Constitution. He holds the original text to be virtually unamendable, and denies that Parliament has any ‘constituent power’. He questions the amendment that brought that term into Article 368 and regards it as a case of an improper enhancement of its own power by Parliament. He thinks that amendments cannot introduce new elements into or delete existing elements from the Constitution, but can only be used for the removal of difficulties; and even so, in his view, an amendment does not change the text of the Constitution, but only ‘acts on it from the outside’ (whatever that may mean). His view of possible

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amendments seems to reduce them to a gloss on the text that leaves the text unchanged. He feels that the vast majority of the amendments made so far are improper and unacceptable, and need to be reviewed by a special Bench of the Supreme Court. That is obviously an extreme view. Some of his criticisms of particular amendments have a great deal of force, but his general proposition that the 1949 text should be treated as frozen and that no changes in it are possible seems to go too far. Conflating Chopra’s and Jha’s points, and in partial agreement/ disagreement with both, I would say the following: 1. In India (unlike the position in the UK) it is the Constitution that is supreme, not Parliament. 2. The Constitution can be amended; Article 368 clearly says so. 3. ‘Amend’ means ‘change’. An amendment, duly carried out in accordance with that Article does change the text of the Constitution; thereafter, the text is the amended text. Jha’s theory that an amendment ‘acts from the outside’ is untenable; in fact, it makes no sense. 4. While amending the Constitution (as empowered to do so by the Constitution) Parliament remains Parliament and does not become a constituent assembly. ‘Amending power’ is a good enough concept; nothing is gained by calling it ‘constituent power’. 5. Article 368 as it was prior to the 24th Amendment was perfectly adequate. Jha is right in regarding that amendment as an attempt by Parliament to enhance its own power. 6. The Supreme Court’s action in introducing the idea of ‘basic features’ into the Constitution amounts to an amendment of the Constitution in a manner and by an agency not envisaged by the Constitution. Moreover, it restricts the amending power of Parliament, and alters the executive– Parliament–judiciary relationship. It makes the Supreme Court the dominant organ of state, whether that was the intention or not. The doctrine needs to be abandoned. Its removal will not affect the Supreme Court’s ability to strike down legislation as unconstitutional with reference to the various actual provisions of the Constitution.

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RAMASWAMY R. IYER

Our Constitution is not only the longest in the world, but is also probably the most heavily amended. Jha is right in deploring this. That leaves us with three problems: (a) over-amendment of the Constitution; (b) judicial interpretations beyond limits; and (c) excessive enlargement of the role of the judiciary.

OVER-AMENDMENT Jha has proposed a review of all amendments made so far by a special Bench of the Supreme Court. If such a review finds a number of amendments unnecessary or improper, would it really be feasible to undo them and revert to the earlier text? And what would happen to all the decisions and rulings given on the basis of the amendments that are now sought to be removed? The question bristles with difficulties. I leave it open for discussion. Assuming that such a course is impractical, can we at least ensure that future amendments are restrained and minimal? Can institutional arrangements (for example, a parliamentary committee on amendments) be made to check all proposed amendments for essentiality and unavoidability, while at the same time not making the process cumbersome and dilatory for those amendments that are felt to be necessary?

JUDICIAL INTERPRETATIONS However carefully a document is drafted, the need for interpretation in the course of application cannot be obviated. That role, in relation to the Constitution, is rightly vested in the judiciary. Further, interpretations and rulings are bound to result in the building up of a body of case law over a period of time. Thus, some degree of legislation by judicial interpretation is inescapable. The question is one of limits. The line between interpreting what exists in the Constitution and reading things into the Constitution is difficult to draw. Some of the ‘readings into’ have been beneficial: for instance, the right to food or the right to water as part of the right to life. However, can we hold the right to work, the right to education, etc., as having the same inevitability and legitimacy? Are these matters of law for the judiciary to lay down, or matters

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of state policy? If new laws on these are felt to be needed, should they not be enacted by Parliament?

ENLARGEMENT

OF THE

ROLE

OF THE

JUDICIARY

The judiciary in India has tended to expand its own jurisdiction in four ways: (a) by using the power of interpretation virtually to create new laws; (b) by constantly enlarging the boundaries of its human rights and environmental concerns; (c) by bringing more and more of executive action and decision making within the purview of judicial review; and (d) by assuming the right to ask public authorities why they have not performed their statutory functions. Some of this ‘judicial activism’ (as already mentioned) has been beneficial, particularly in the context of failures on the part of the executive and the legislature; but in the long run each organ of state must, by and large, remain within its sphere. What institutional arrangements (if any) can be made to ensure this? At present, while the constitutional limits of executive action and parliamentary legislation are determined by the judiciary, the limits of judicial interpretation, decision making and direction are decided by the judiciary itself. Can we institute a separate body— perhaps a judicial commission—to which questions of the Supreme Court’s jurisdiction can be referred? Or should we leave it to the Supreme Court (as at present) and hope for the best? I am not raising here the question of public interest litigation (its benefits and dangers). What is involved in PIL is essentially a procedural question, namely, the relaxation of the requirement of locus standi, and not necessarily a constitutional or jurisdictional question.

REFERENCE Jha, R.C. 2004. Cry of the Indian Republic. New Delhi: Anamaya Publishers.

14 THE SUPREME COURT, PARLIAMENT AND THE CONSTITUTION Ajit Mozoomdar

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ran Chopra’s theme paper argues that the Supreme Court has in a variety of ways enlarged its own jurisdiction and authority beyond what was envisaged by the Constitution and that in doing so the Court has weakened the authority of Parliament, to the detriment of Indian democracy. The issues for discussion framed in the theme paper raise questions about the interpretation of the Constitution and the intentions of the framers. It contends that the Court has distorted the Constitution, especially by introducing into it the concept of limited amendability in the shape of the basic structure doctrine. These issues have been discussed extensively by judges, legal scholars and political scientists. While on some issues opinion may be divided, it would be fair to say that the critical perspective of the paper—that judicial authority has been overextended—represents a minority view today. The present paper is structured as a response to the theme paper. It attempts to explain why there is general support for judicial law making as it has developed in India in recent decades.

THE SUPREME COURT

AND

PARLIAMENT

The idea of a necessary conflict between the authority of Parliament and that of the Court has been argued in different ways. The

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concept of the supremacy of a sovereign Parliament—still popular with parliamentarians—is rightly rejected in the theme paper, which recognizes that a written Constitution necessarily imposes limitations on the exercise of power of sovereigns, whether Parliament or the ‘people’. The position of the theme paper is rather that a Parliament elected on the basis of universal suffrage represents the popular will, and democracy means that this will (determined by majority vote) must ultimately decide all political questions. It would be undemocratic if the courts were able to frustrate, by any means, the ultimate authority of Parliament. In a popular expression of this view, a set of unelected judges should not prevail against the elected representatives of the people. A conflict at this level has been referred to as a struggle for the custody of the Constitution. The problem with this view is that democracy means not just decision making by elected representatives, but also the protection of the rights of citizens and the rule of law. The basic law of the state is the Constitution, which imposes various limitations on simple majority rule by way of protecting citizens’ rights and group rights, and which lays down the structure of governance and rules for its functioning. The enforcement of these rights and the resolution of conflicts in the course of governance are the responsibility of the judiciary. The court has the final say in these matters; so in a sense its custody of the Constitution can hardly be disputed.

INTERPRETING CONSTITUTIONS The theme paper asks if the Supreme Court, in interpreting the Constitution, is limited by some generally accepted principles, and if it can construe the Constitution in a way not intended by its framers. The battle between those—the legal positivists—who argued that a statute must be interpreted solely on the basis of the words in the law, and those who held that it should be read in a way that gives effect to the intentions of the framers of the law has ended in a compromise. The general rule is that the words prevail unless ambiguous, but should not be construed in a way that negates the intentions of law makers. However, the precise meanings of words and phrases in statutes are not always clear from dictionaries and legal lexicons; the intentions of governments are

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not spelled out in detail in parliamentary debates; and legal draftsmen may not always be as skilled as they should be. The interpretation of the terms of a constitution also brings other considerations into play. The consistency of different Articles in different parts of the document has to be ensured. More importantly, a constitution will refer to political and legal concepts such as freedom, equality, discrimination, public order and so on, which will need to be defined later for application in specific contexts. Thus, constitutional provisions may have to be given effect by interpretation of terms in ways that may depart from lay understanding based on common usage. All constitutions have to be elaborated by judicial interpretation over time. In this respect the only difference between the short US Constitution and the long Indian one is that the latter spells out the institutional arrangements of governance in much greater detail. Thus, in the critical area of federalism the Indian Constitution leaves no room for ambiguity in the distribution of powers between the national and state governments; in the US federal authority has had to be extended by judicial interpretation of the interstate commerce clause. The constitutional debates, though an important source, cannot resolve all contested issues of interpretation. Judicial interpretation is necessarily a continuing process: the results are not immutable, since (in rare cases) the highest court may modify its own earlier decision. To what extent, if at all, should constitutions be interpreted to adapt them to changing political, social and economic conditions is somewhat controversial (less in India than in the US). Besides the issue of strict interpretation, the question arises whether the intentions of constitution makers to be taken note of are ‘original intent’—determined by reference to the actual words of historic debates—or whether the relevant principles should be applied to contemporary conditions. The original intent approach bars creative adaptation. Liberal opinion has overwhelmingly been in favour of the adaptive approach. In the US it has been the basis of major social and political reforms, such as establishing the right to privacy and women’s right to abortion. These reforms— especially the right of abortion—would not have been achieved otherwise, given divided political opinion and the federal polity. In India the creative interpretation of the right to life to mean the

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right to live with dignity, and hence to extend it to establish rights to privacy, access to education, etc., and extension of free speech to cover not only freedom of the press and media but also to a right to information, are developments welcomed across the political spectrum. There are few strict constructionists who argue that new concepts should not be judicially inserted into the Constitution, and that such extensions should await Parliament’s attention, to be attained through constitutional amendments.

JUDICIAL REVIEW More than the judicial interpretation of constitutional provisions, the concern of the theme paper is the subordination of parliamentary authority to the courts arising from the judicial review of legislation. The issues have been raised as questions. What are the sources of the Supreme Court’s power to invalidate legislation and even constitutional amendments? Do these extend beyond what is laid down in the Constitution itself? Can a law be struck down simply because it is inconsistent with what the Court considers to be just and reasonable? Taking first the Court’s powers, the Constitution does not expressly confer on the Supreme Court (and High Courts) the power of judicial review of legislation or define its scope. This is in contrast to European constitutions, which confer such powers on specially created constitutional courts. In India, as in the older Commonwealth countries, the higher judiciary predated the Constitution, and its continuity was assumed. The Constitution establishes their institutional structure, confirms their powers to issue various writs, and entrusts to the Supreme Court the task of resolving Centre–state and interstate disputes. The power of the Court to review, and if necessary invalidate legislation, has to be inferred from Article 254, which says that parliamentary and state legislation must conform to the provisions of the Constitution, and Article 13 and 32, which prohibit legislation in derogation of the Fundamental Rights of citizens and enjoins the Supreme Court to enforce the rights. The power to determine whether a law is consistent with a written constitution, and to invalidate it if it is not, was first asserted by Chief Justice Marshall of the US Supreme Court in the

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early 19th century in Marbury vs Madison. This became a part of the Common Law tradition and so was incorporated in the constitutional law in Commonwealth countries. In India the power was assumed by the Federal Court under the 1936 Constitution, and then by the Supreme Court in independent India. When conflicts arose between the parliamentary executive and the judiciary over the validity of land reforms legislation and some other laws involving property rights, Parliament had to amend the Constitution to curtail the courts’ plenary powers to review legislation by excluding specified laws from judicial scrutiny. Turning to the grounds for judicial review, in principle this is only to ensure the conformity of the legislation with all the provisions of the Constitution. The purposes of laws or the policies embodied in them cannot be challenged in review, so the courts do not subject the laws as such to any tests of justice or reasonableness. However, most laws affect rights of citizens and groups that enjoy qualified protection under the Constitution; sometimes there are conflicts between different sorts of rights, and laws may prescribe processes to determine rights. When laws are challenged on grounds relating to these, courts apply judicial standards such as the rules of natural justice and concepts such as reasonableness. These standards are shaped by legal precedents, but an element of subjectivity cannot be eliminated from judicial decision making. That the process of judicial review leads to a substantial amount of judge-made law can hardly be denied.

‘DUE PROCESS’ The scope of judicial review in India has been significantly extended in recent years. Following an important article by a legal scholar, Andhyarujina, the theme paper questions whether the Supreme Court had the right to introduce into the Constitution a concept (‘due process of law’) that was rejected by the constitution makers after due deliberation. A short answer would be to say that the Supreme Court has not actually done this. The underlying argument, however, is that the Court has enlarged its power of judicial review to cover areas where the framers of the Constitution intended that laws enacted by Parliament (and executive action under those laws) would be immune from judicial scrutiny.

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The constitutional debate in India shows that the phrase ‘procedure established by law’ was used in the relevant Articles instead of ‘due process of law’ as in the US Constitution because of concerns that the courts might exercise the right of judicial review of legislation involving property rights to thwart social and economic reforms. That had happened in the US in the 1920s and 1930s (though by the 1940s the US Supreme Court had shifted its position). What happened in India was that the Supreme Court did intervene in defence of property rights—in land reforms and nationalization cases—by interpreting ‘compensation’ to mean ‘reasonable compensation’. This led to the First Amendment and Schedule IX to remove land reform legislation from judicial review, and later to property rights being excluded from the list of Fundamental Rights. But where laws affecting Fundamental Rights of personal freedom were concerned, the Supreme Court accepted that judicial review was excluded. In the landmark case of Gopalan it was held that the Court could not consider whether procedures of preventive detention were just or reasonable. It was only three decades later—after the Emergency—that Gopalan was overruled in the Maneka Gandhi case. Then in Bommai, overruling earlier cases, the Court assumed the right to examine the reasonableness of the executive’s judgements to remove elected state governments from power under Article 356.

THE BASIC STRUCTURE DOCTRINE The extension of the scope of judicial review to laws amending the Constitution in the 1960s marked a significant expansion of judicial power and a reduction in that of Parliament. At first the review was only to determine whether the procedural requirements of Article 368 had been met. But in Golak Nath the Court assimilated amending Acts with ordinary legislation to examine whether the amendment was consistent with other provisions of the Constitution. This enabled the Court to invalidate a constitutional amendment, introducing the concept that some provisions of the Constitution may be unamendable. Such a judicial power had not been asserted by the US Supreme Court or any apex court

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of the Commonwealth. Limitations on Parliament’s power to amend the Constitution were then confirmed in Keshavananda, and the doctrine of the basic (unamendable) features or structure of the Constitution was developed. The theme paper is right in contending that the Constitution contains no provision limiting Parliament’s amending power; nor was any such idea considered during the constitutional debates. The basic structure doctrine is clearly a judicial construct. Opinions are divided among legal scholars (as they were among judges in the two cases) on the reasoning on which these decisions were based. But the doctrine is now not only established law but has gained wide acceptance, especially since the constitutional turmoil of the Emergency. The present writer’s position is that Keshavananda has strengthened our democracy, and that Parliament’s authority and legitimacy are not diminished if it lacks the power to make radical changes in the Constitution that would profoundly change its character, whether by changing institutional structures or altering its basic principles. The central issues in the debate arises from political philosophy rather than constitutional law. Can a Constitution provide for its own subversion? How far can a Constitution be amended and still retain its original intents and purposes? These questions were raised in European constitutional discourse before they made their way into Anglo-American jurisprudence because of the Continental experience of revolutionary political change. The seminal experience was the legal subversion of the democratic Weimar Constitution to allow the transition to one-party rule by National Socialists. As a result of this experience, when the Basic Law constituting the Federal Republic of Germany was framed, it provided that some of its important provisions would not be amendable. These features were: the federal structure, enforceable human rights, a democratic social welfare state, free elections and judicial review of all legislative and executive action. The judicial determination of constitutional issues was left to an especially created constitutional court. The post-war constitutions of Italy and Norway also provide for some features to be unamendable.

Part II THE IDEAL REMEDY: A VALEDICTION Soli Sorabjee

THE IDEAL REMEDY: A VALEDICTION

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et us get some basic notions clear. To say that judicial review has been smuggled in by the judiciary might, I think, be a rhetorical statement, and we can leave it at that. I do not agree with Ajit [Mozoomdar] that this is a common law tradition. Let me explain how judicial review was deliberately inserted in our Constitution. There was a long debate in the Constituent Assembly as to what power should be given to judges for determining the validity of legislation. Alladi Krishnaswamy and others asked, ‘Do you want to leave it to five or six judges to decide what has been decided by the representatives of the people who have been elected?’ The argument went on. There were two views. Dr Ambedkar was a bit ambivalent. Then came Pandit Thakurdas Bhargava’s brilliant amendment. At that time fundamental freedoms had been declared in Article 19. But some sub-clauses empowered the states to impose restrictions. The sub-clauses merely said ‘restrictions’. Thakurdas Bhargava asked to please insert the word ‘reasonable’ before restrictions. Once that was accepted it became very clear that reasonableness would be determined by an independent authority, that is, the judiciary. A legislature cannot be a judge in its own cause and say that the restrictions imposed by it are reasonable. That would be absurd. After that someone said we would rather trust the Supreme Court for the guardianship of our Fundamental Rights, and that was more the voice of many Muslim and other members belonging to the minority. So finally it was accepted that the Supreme Court had been assigned the task of interpreting the Constitution. The Court may give a wrong interpretation, but that is a different matter; just as some of its judgments may be criticized as wrong. But this power is also derived from the Article 13(1) and 13(2), which specifically provide that ‘any Law which is inconsistent with the Constitution shall be void’. So our founding fathers and B.R. Ambedkar did not want to go back to the American doctrine, propounded by

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Chief Justice Marshall in Marbury vs Madison. They knew about it. Dr Ambedkar knew about it very well. But they did not want to go back to that. That is why we specifically have Articles 13(1) and 13(2) in our Constitution, which clearly lay down that the power of judicial review is in the Constitution. Not by implication but by Articles 13(1) and 13(2). So please be clear that there is no common law tradition here. Ambedkar was very happy. He was of the view that this really solved the problem. ‘Reasonable’ means, to some extent, judicial review. That is point number one. Second is the basic structure doctrine, and in due course I will come to some good comments made by Ajit on that. Look at Article 368. See how it reads. Textually the amending power is unlimited and absolute. But what is the power? It is the power to amend, and it is a well-recognized legal doctrine that you can read inherent or implied limitations on the exercise of a power that is also expressed in wide terms. What the Supreme Court has said is that this power to amend cannot be the power to destroy. The power to amend must support the basic pillars of the Constitution. The core values of the Constitution cannot be destroyed. The power to amend is subject to these inherent limitations.

THE LIMITS

OF

AMENDMENT

What are these inherent limitations? The reasoning is (let me read what Justice Khanna has said because he is really the author of the doctrine) that ‘any amending body organized within the statutory scheme, howsoever verbally unlimited in power, cannot by its very structure change the fundamental pillars supporting the constitutional authority’. The essence of the basic structure doctrine is that the Constitution cannot be so amended that its fundamental character may be destroyed, that its basic identity may be destroyed. If an amendment strikes at and demolishes the very pillars on which the Constitution stands, then the doctrine of basic structure comes in. Now it must be remembered also that what is or what is not an essential feature of the Constitution cannot be ascertained from the historical circumstances and the actualities of political reality. There are no questions about it. But before Keshavananda Bharati, constitutional amendments were just being rushed through. That

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may have affected the judges. Even before the Emergency the concentration of power was so great that we really had one-party rule. But please do not think that this basic structure doctrine is the brainchild of some of our Supreme Court judges. In Germany the doctrine of basic structure is also recognized as a separate jurisdiction. The German constitutional court has laid down that the federal parliament is not empowered to do anything that affects the identity of the Constitution by encroachment on its basic structure. This question also arose in Italy. The Italian constitutional court, in the context of litigation over the lateral treaties concluded between the Italian states and the Vatican, held in 1988 that: The Italian Constitution contains certain supreme principles which cannot be modified as regards their essential content, either by constitutional amendments or by other constitutional laws. This applies equally to express limitations and also to other limitations, so long as these principles belong to the core of the supreme values which form the bases of the Italian Constitution. What I am trying to say is that this thought is not something strange, it is not the child of some queer brain. You have it in Germany, you have it in Italy. The Bangladesh Supreme Court struck down as unconstitutional an amendment the object of which was to diminish the authority of the high court and to give to the chief martial law administrator the power to transfer and retransfer judges at his unfettered discretion. The apex court there said, sorry, this affects the very basic idea of the independence of the judiciary, a basic feature of our Constitution. Mind you, I am not pronouncing an opinion on whether in a given case the court’s judgment was right, or whether it offended a basic feature. I am saying that there is a concept that says that there are certain essential ‘core values’, to use the language of the German Constitution, or that there are certain ‘supreme principles’, to use the language of Italian Supreme Court, or as the Bangladesh apex court says, there are certain pillars that you cannot demolish because if you did that you would destroy the Constitution, not amend it.

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FIVE BASIC FEATURES I think there is near-unanimity that there are at least five features that can be regarded as essential and basic. The first is secularism; second, democracy; third, rule of law; fourth, federalism; and the fifth is an independent judiciary with the power of judicial review. If the basic structure doctrine is not accepted then it will be open to Parliament to amend the Constitution to provide that only persons belonging to a certain religion or community can hold the offices of the president, vice-president, chief justice and the speaker. As Ajit said, tomorrow you have a party with a certain ideology which passes such an amendment—no doctrine of basic structure, nothing—we have to accept it. What happens to secularism? Can you pass an amendment that says that people belonging to certain religion may hold certain offices and others are excluded? You cannot. Why? Because secularism is a basic feature of the Constitution and you cannot destroy it by the amending power. A second example: suppose by constitutional amendment you provide that the Rajya Sabha will be abolished and all the powers of the state which are in List II under Schedule VII will be taken away by the centre. Will that not affect federalism? Look at the entire scheme of the Constitution. Suppose tomorrow there is another legislation that for 50 years there will be no election because elections create trouble and cost a lot of money. Or suppose there is an amendment that judges may be removed at the will of the executive if the executive thinks they are not performing satisfactorily. Does this not affect the basic features of the Constitution? Someone might say that these are extreme examples. But extreme examples are given to test principles. There was an attempt during the Emergency to pass the Constitutional 40th Amendment Bill. If there had been no basic structure doctrine you could not have challenged that amendment. Mind you, contemporary events do influence judges. Even those very persons who had doubts about the basic structure doctrine in Keshavananda Bharati changed their views when they saw the amendment validating the election of the prime minister on the basis of complete negation of equality. So in my view it is thanks to the basic structure doctrine that our constitutional values have been preserved. It is thanks to the

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basic structure doctrine that we will not have a completely majoritarian rule. And there is a basic difference when our courts strike down a legislation on the grounds of violation of Fundamental Rights and when it strikes down a constitutional amendment.

IDEAL REMEDY Of course, it would be ideal if our Constitution also says, as certain constitutions do, that certain specified provisions are unamendable. For example, in Germany you cannot amend the republican form. So also in the Italian Constitution. In America the republican form of government cannot be changed. There is no question about it. Of course, there is a real weakness in our ‘doctrine’ because, after all, judges may try to increase the list of essential features. Then how is our Parliament to know where it stands? A very serious current controversy is the question whether we should change over to the presidential system. Will that amount to damaging the basic structure, an essential feature? In my opinion it will not. So I see the problem. But to my mind, though the ideal situation would be to have them specifically enumerated, till that is done we should not dilute the basic structure doctrine. I never understood the other point that my good friend Pran Chopra has made, that there is a clash between the Constitution and the courts. What is the clash? The power of interpretation is with the court. That has been well laid down from 1952. The Supreme Court, thanks to its creative interpretation, has deduced certain Fundamental Rights that are not specifically mentioned in the Constitution. Freedom of the press is not mentioned in the Constitution. But the Supreme Court has declared that it is implicit in the guarantee of freedom of speech and expression. Has it smuggled in something? Did it subvert the Constitution? It enlarged the Fundamental Rights of the people. It placed an interpretation that free press is something inherent in the guarantee of free speech and expression. Is anybody opposed to the Supreme Court judgment? Please raise his hand. Furthermore, the Court did something more salutary. The government has always dragged its feet on a Freedom of Information Act. But the Court said in S.P. Gupta’s case that the right to know,

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freedom of information, is also implicit in Article 19-1(A). This is a salutary case of creative interpretation. It has also been the basis of many petitions in the courts asking for information about certain important things. Even without a Freedom of Information Act this Supreme Court judgment of 1980 can be invoked by journalists when information is denied to them, and in many cases they get it. Similarly, the right to privacy, to education, to travel abroad and return have been deduced from the Constitution by courts. The same exercise has been performed in the United States. Look at the other thing. Freedom from cruel and inhuman punishment. We do not have that. Article 8 of the US Constitution specifically provides: No one shall be subject to cruel, inhuman or degrading punishment or treatment. But Justice Krishna Iyer says it is there, look at the Preamble—‘dignity of the individual’, and look at other provisions also. So I think this is a matter in which our Constitution has to evolve, has to develop, and these are really some salutary judgments of the Supreme Court that have enlarged the Fundamental Rights of the people. Take another example that has just struck me. Today, in our Constitution we do not have any enforceable right of compensation in case of an illegal order. You can strike down an order, saying that it is bad, and you may impose costs on the particular official, but there is no right to compensation. But Justice Verma and Justice Anand have spelt it out, that in order to make the right effective there must be a right of compensation for an illegal order of detention. This is how Fundamental Rights have been enlarged. Take environmental jurisprudence. We are very proud of this. But how did the Supreme Court do it? By interpretation. ‘Life’ in Article 21 does not merely mean physical or animal existence. The right to live means the right to live with dignity. And from there flow the right to health and the right to various other assets that make life worth living. So I do not see this as a way of smuggling in anything. In other courts that have adopted the doctrine of basic structure, what has happened? Has it been detrimental to progress? Of course, the power must be exercised very sparingly and in manifest cases. Sometimes, as Attorney-General, I have had to defend certain constitutional amendments, and I have to tell the judges, ‘Please don’t test them as you test ordinary laws. There

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must be a clear violation.’ So, to my mind, we should ideally have these features. I do not know when Parliament will have the time to debate these things, because we are busy with other things. But please, till that time, there should be no dilution of the doctrine of basic structure, which, according to the circumstances and context in India, is necessary.

JUDICIAL REVIEW

AND

DUE PROCESS

Two more things. I do not agree with Ajit that where laws affecting Fundamental Rights or personal freedom are concerned the Supreme Court accepts that judicial review is excluded. That would be misunderstanding Gopalan. The argument there was that procedure established by law should not merely mean any procedure. It must conform to the principles of natural justice. So many detentions have been set aside where the detention was not in accordance with procedure established by law. The Court placed an interpretation on Article 21, which was a restrictive interpretation, by saying that the ‘procedure established by law must be a fair, reasonable and just procedure’. The other thing I want to say, and there is force in it, is about the place of due process in our Constitution and the debates. The founding fathers did not want substantive due process, under which the American courts have struck down various legislations. Frankfurter cautioned against that, and our constitutional adviser also said we do not want to get into due process in the way in which American courts have struck down New Deal socio-economic legislations. Therefore, they deliberately inserted the words that are a part of the Japanese model, ‘according to procedure prescribed by law’. But I must confess that though that was the clear idea of the founding fathers (Ajit is right, they did not want to do away with the due process and they had the words), they wanted procedural due process, not substantive due process. But as things have happened, I think our Supreme Court, despite the intentions of the founding fathers, has really exercised the power as though they had the due process provision in that. That has gone on for a very long time. In fact, the Court also indulges in judicial legislation. Of course, we are happy because the end product is good.

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Take a judgment in a sexual harassment case. If we analyse it, it is a clear instance of judicial legislation, but they have done that. Referring to various international covenants and other things, Justice Varma said only this will be the law under Article 141, binding on all others, till Parliament passes a law. Now why did they do this? Because of the lethargy of the executive, almost bordering on, if I may say so, cruelty and the inaction of Parliament. Sometimes, purely juristically, they may not be correct. But how long should we wait till the legislation on sexual harassment is passed? Very often it is said that courts take over functions that belong to the executive. I agree it is not the function of courts to say that you illuminate a railway station or see to the prices of onions. Every matter of public interest is not the subject matter of public interest litigation. I agree, and sometimes some orders are passed by judges that do more credit to their hearts than to their heads. But why did public interest litigation get going, gain momentum? Because it was brought to the notice of the court that more than a deliberate action by the executive, inaction by the executive in enforcing laws which are meant for the protection of the health of children, which are meant for the protection of the environment, the executive does not do anything. So, what the court says in a PIL is, ‘Look, these are laws made by Parliament. Implement them, and we want to monitor their implementation.’ That is really what happens in most matters. Take the Bonded Labour Act. You know what a terrible thing bonded labour is. People live in bondage from one generation to the next. You know the conditions in which these people are kept. Parliament passes an Act, Abolition of Bonded Labour Act. When? Twenty-six years after independence. And what happens? No implementation. Swami Agnivesh went to court about the lack of implementation, and thousands of people living in conditions of slavery and bondage. And then the Supreme Court took action. Could the Supreme Court have said it was the work of Parliament? It said, yes, if this is the law made by Parliament, issue a notice why they are not enforcing it. They asked for reports at different stages on how many bonded labourers there might be and where, and what is being done about them. Thereafter, the Court started giving directions, not merely for release but also for rehabilitation. Not merely monitoring compen-

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sation, but prescribing it. You may say that this is not the function of the court. But look at in the larger context. Look at the relief that it has provided to this neglected segment of humanity. So take an overall picture. I am the last person to say that there have not been aberrations. I am the last person to say no orders in the PIL are really very extravagant. If I may say so, we are not dealing with persons who have been given the gift of infallibility, we are dealing with judges who are human beings, and in every court in every country they may pass orders that may not appear to be correct. But it is thanks to PIL and judicial activism, in the sense of judicial sensitivity to human sufferings (not to property rights, as in the 1950s and 1960s, but sensitivity to human sufferings of bonded labourers, of people languishing in jails as undertrials for years, for periods longer than what they would get on conviction), which has made the Supreme Court meaningful for these people, to some extent, at least. I would say that with all its deficiencies, the Supreme Court has been the protector of the Fundamental Rights of the people. Criticize it when it goes wrong. But do not question the premise on which it works. I must say one thing, that I must congratulate Pran [Chopra] and George [Mathew] for arranging this seminar because I think, we, as citizens in a democracy, owe it to ourselves and to our system to have this debate, to have this discussion, because many ideas get cleared up and we get new inputs because there can be no ultimate finality about this matter. As Gharekhan has said, the whole idea of fundamentalism is an invincible conviction of the truth of one’s beliefs and the resulting notion that it is the believer’s duty to eliminate those who do not accept your beliefs. (In reply to some questions at the end of his Valedictory Address Soli Sorabjee added the following points:) 1. In the matter of the law of contempt of court to which a reference has been made, some changes are certainly needed. In an opinion to the government I have said that you should attend to this law regarding truth as defence. Without that defence this law can lead, for instance, to self-censorship by journalists. Today if a journalist or some other person accuses a judge of dishonesty, he can be charged with contempt. If he says, ‘No, I can prove it on the basis of

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documentary evidence,’ he can be told that truth is no defence. Many dishonest judicial officers take shelter behind this doctrine. So, after consideration we have sought an amendment to the contempt-of-court law. The Bill on this is pending in Parliament. Under it a bona fide plea of the defence will be available. Of course, if the accusation is found to be false or frivolous, then it will be dealt with severely. But the plea must be available. It is available in libel but not in contempt because of an anomalous English doctrine which our Supreme Court has also unfortunately endorsed. 2. Regarding the Supreme Court reading ‘consultation’ as ‘concurrence’ in the matter of appointment of judges, the Court has overreached itself. Perhaps the Court was carried away by some cases of objectionable transfers, supersessions and appointments of judges, and executive interference in other ways too. 3. I have been asked for my views on the death penalty. Personally I am opposed to it for two reasons. First, the fallibility of human judgement, and second, the irreversibility of an execution. I also think that a death sentence is not a deterrent. It does not exist in Israel, a country which is packed with suicide bombers, and most European countries. Here we have it only in Pakistan and Bangladesh. It should be imposed only in the case of a terrorist who takes pride in killing innocent people and says he will do it again till whatever he is demanding is conceded.

Part III REVIEW AND RESPONSE Pran Chopra

AN OVERVIEW

I

t is not easy to give a consolidated overview of a very animated debate, rich in its variety of points of view, comprising perhaps 200 interventions of various durations, and spread over two days and 17 substantial papers. But three aspects stand out in a brief retrospect. First, while the overall theme was the dynamics of federalism, within that the first centre of attention was the evolution of constitutional and political relations at two levels: at one level between the Constitution on the one hand and on the other hand Parliament, the Supreme Court, other institutions of governance in general; and at another level between the federal centre, the federated states and an emerging system of local self-governance. Much of the focus at both levels was on the changing roles of Parliament and the Supreme Court under the canopy of the Constitution, in a matter so important as keeping India’s federal parliamentary democracy abreast of the changing needs and values of a billion people. The constitutional aspects of the task generated considerable discussion on the divergence between the role assigned to Parliament by the Constitution and the role assumed by the Supreme Court under the ‘doctrine of basic features’, which the Supreme Court first propounded in the Keshavananda case and subsequently expanded in many directions. The effects of this divergence on the role of Parliament in particular and public opinion in general were critically discussed from differing and sometimes opposing points of view. Second, since the ‘doctrine’ has considerably enhanced the amending power of the Supreme Court and reduced that of Parliament, much time was also spent on discussing the causes and consequences of this shift in the balance defined by the Constitution between these two premier institutions of governance, particularly in a parliamentary system which is also federal. There was a clear clash of views between those who spoke up for the

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rights of courts and those who did so for Parliament, democracy and federalism. The former view was stressed more by participants who belonged to the legal and judicial fraternity, and the latter by those drawn from public and political life, though this dividing line was crossed by many people. A few lawyers and judges spoke up more for the Constitution than for the doctrine of basic features. On the other hand, some, though fewer, participants with a background in public affairs spoke more for the doctrine. Third, whether they spoke from one or the other side of the dividing line, the single largest group was of those who laid stress on the importance of the issue, if not in the immediate then certainly in the visible future, and the need for further discussion before such controversies broke out as would make it difficult to discuss the issue in the kind of calm atmosphere that had marked the seminar. In this respect the most notable presentation was the one made by Soli Sorabjee, who was Attorney-General until recently. He made an elaborate defence of the doctrine of basic features. But he added that the best way of defending such features would be to entrench them in the Constitution; in the meantime, the doctrine should remain in place. All participants agreed that the Supreme Court alone has the power to interpret the Constitution. But some said the Supreme Court had crossed the limits of ‘interpretation’ by reading ‘procedure established by law’ as ‘due process’, and ‘consultation’ as ‘concurrence’. In doing so and by inventing the doctrine, the Supreme Court had stretched its powers beyond the limits set for it by the Constitution. But unfortunately, reasoning on both sides was sometimes distracted by the exigencies of current or bygone political situations, to the detriment of the high quality of the debate on the principals that underlie our political institutions and systems. The worst sufferers were Parliament and state legislatures, first because the differences between the legislative and constitutional roles of these institutions were not always remembered; and second, the rights, duties and role of elected representatives in a democracy were sometimes drowned in differences over the views and ideology of one political party or another, or in sorrow and anger over

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the behaviour of some of those who are elected nowadays, or the real or imaginary biases of ‘majorities’ or handicaps of ‘minorities’. That led to one seminal mistake, from which others also flowed in a few interventions. Some speakers confused the legislative role of Parliament with its constituent role. This became a reenactment of the mistake many more people had made 60 years earlier, as pointed out in the theme paper. Seeing the same people passing laws and adopting the Constitution, they thought the two institutions were the same. The next step was to confuse the task of interpreting the Constitution with interpolating things into it, and with the Supreme Court’s unquestionable power and right of judicial review for ensuring that no law or amendment was inconsistent with the Constitution. Avoidable controversies sometimes diverted attention from the democratic remedies available under the egalitarian postulates of the Constitution. For example, while rightly chastising MPs for the deplorable scenes often witnessed on the floor, participants neglected proposals that were lying before them for improving the quality of representation, including improvements in the voting system that would make MPs more representative of and accountable to the electorate. The second lapse in the discussion was that in the heat of differences between them participants attributed positions to each other that had not been taken and relegated to the background those that had been. This happened even to positions that were before the seminar in black and white. But leaving these flaws aside, the debate was of high order and merited the compliments paid to the seminar it by many participants. It was generally agreed that there was a contradiction between some of provisions of Article 368 and some assumptions made under the doctrine of basic features. Opinions differed on how imminent or serious a clash between them might be. But there was no disagreement on the need for further discussion. Those who emphasized the need also noted that some recommendations had been made that would narrow the gap between the two sides. Most of those who supported the doctrine did so on the grounds that it was needed, and not the grounds that the Constitution had provided for it. The argument of need was based on the fear that

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otherwise Parliament might repeat what it did in 1975, or the fear that a ‘majoritarian’ party might win a future election and then dismantle secularism. The substance of the argument on the other side was that there were safeguards in the words and meanings of the Constitution, but if more were needed then they should be built into the Constitution via Parliament by building up electoral support for them. This is the context in which (using the sense of what was said and not always the exact words) some points made by the participants are noted in the following paper. They have been selected from the discussion on the two days and on looking back on what was said over the two days. A few aspects that stand out in the larger context of the theme and were not discussed during the seminar will be taken up separately along with some basic issues.

INTERVENTIONS

ON DAY 1 ASHOK DESAI

The Supreme Court of India has become perhaps the most powerful court in the world. This enhancement in its role has come about partly through its own judgements, for example, the Keshavananda judgment, which put the ‘due process’ principle into Indian jurisprudence in place of the ‘procedure established by law’, which was adopted by the Constituent Assembly when it framed the Constitution. As a result of this change, the Court has been able to improve the content of civil rights. For instance, the ‘right to life’ has been expanded to mean ‘right to life with dignity’. Similarly, through various interpretations of the Constitution, the Court has been able to curtail the power given to Parliament by the Constitution to amend any provision of the Constitution so long as it is amended under the amendment powers defined in Article 368. Under the principle of ‘basic features of the Constitution’ that has been evolved by it, the Court can strike down any constitutional amendment that violates whatever the Supreme Court may declare to be a ‘basic feature’, even if that amendment is in conformity with Article 368. The Court needs the basic features principle to protect certain rights of the minorities against laws made by the majority. The enhancement in the role of the Court ‘has been a change for the better’. But the judiciary has a totally inbred process for the appointment of judges, without objective criteria. The Bar Association of India recently recommended that a commission, even if it included a majority of judges but others as well, must be appointed to bring in objective decisions. But the idea seems to have been shelved. [In a subsequent exchange of views with the Convener, Ashok Desai gave the following explanation of how the basic features

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doctrine has enabled the Supreme Court to give better protection to the rights of minorities, a subject that figured a lot in the seminar:] The initial Supreme Court jurisprudence on the power of Parliament held that an amendment to the Constitution was immune from challenge on the grounds that it took away or abridged a Fundamental Right. Golak Nath marked a departure in 1967 from the line taken in the early cases. It held that amendments to the Constitution could be challenged and struck down if they took away or abridged Fundamental Rights. Such a view would have invalidated amendments relating to property rights. A different chord was struck in Keshavananda Bharati, in which the Court held that a Constitutional amendment could be struck down if it abrogated or destroyed the basic structure of the Constitution. It held so on the reasoning that the power to amend did not include the power to destroy. In Keshavananda and even subsequently the Supreme Court did not give an exhaustive list of the elements of the basic structure. Over a period of time the Court has identified features such as equality or secularism as basic features. But the fact that no exhaustive list of basic features has been drawn up is both a weakness and strength of the doctrine. The basic structure doctrine is a judicial innovation and is not necessarily based on a plain reading of the applicable provisions of the Constitution. It has resulted in the Supreme Court of India becoming one of the most powerful constitutional courts in the world, with ability to strike down even a Constitutional amendment. One clear example of basic features that has been given is secularism. Thus, if Parliament, acting in accordance with the majority prescribed in the Constitution, amended the Constitution to delete some of its secular characteristics, it is likely that the Court, relying on the doctrine evolved in Keshavananda Bharati, will strike down that amendment as violative of the basic features of our Constitution. Similarly, if Parliament announced that India would become a monarchy, the announcement would be likely to be struck down by the courts. Viewed in that light, the doctrine of basic structure gives the Court greater flexibility in striking down even a constitutional amendment if a particular legislative majority in Parliament introduces an amendment that denies or abridges Fundamental Rights, including those of the minorities.

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[The Convener’s response to this follows in ‘Looking Back: Some Basic Issues’.] KUMAR SHANKARDASS

My real concern is that one of these days the Supreme Court will hold that the appointment of judges by five judges of the Supreme Court is a basic feature of the Constitution! MOHTA

I am trying to understand the basic feature of this debate! I am asking whether our long Constitution, as it stands today, and as amended from time to time, has any scope for the theory of basic structure, which is essentially a judicial innovation based, rightly, on the belief that Parliament is not functioning well. Nariman says correctly that he would prefer the present judiciary over the present elected Parliament. But as Pran Chopra has been saying all along, whatever structure it is that you prefer, whether secularism or democracy or anything else, it should be specified in the Constitution. Otherwise you will not know what the basic structure will be tomorrow. As it is we are talking about the rule of law without knowing what the rule or the law or its interpretation is. In this way we are subjecting people to the grave error of uncertainty. ASHWINI KUMAR

The supremacy of Parliament in the field of legislation has to be defended. But I would rather have Parliament as the initial and the Supreme Court as the final arbiter of my liberties and core values. Therefore, there is no conflict of views between the Supreme Court and the Constitution and this debate cannot be about such conflicts. KUMAR SHANKARDASS

The core values are also in the Constitution and can be protected through it. CONVENER

Permit me to clarify it once again that what I have been saying all along, and have said in my theme paper also, is that anything we wish to do in constitutional matters should be done through

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the Constitution and under its authority rather than by circumventing it and acting in the name of the doctrine of basic features, which finds no reference in the Constitution and derives no authority from it. Otherwise there is bound to be a conflict between the sweep of the doctrine and the categorical language of Article 368. ANDHYARUJINA

I was closely associated with the Keshavananda case. I was working with Seervai. I found the proceedings to be ‘murky’ and the value and validity of the doctrine of basic features to be questionable. There were ‘manifest animosities between the judges’ and ‘acute bitterness’ in the midst of ‘political pulls and pressures’. The atmosphere was not at all conducive to proper evaluation of the issues in this momentous decision four out of nine judges refused to sign the judgment. Justice Khanna, whose vote turned a tie into 7:6 majority, did not subscribe to the basic structure theory or theory of implied limitations on the amending power of Parliament. What lent legitimacy to the basic features theory was the dishonest attempt made in the 39th Amendment to put the election of the prime minister beyond judicial scrutiny. Nariman says the basic features doctrine will prevent a Hindutva type of situation. If we are foolish enough to want a Hindutva type of country no Supreme Court can do anything to prevent it. No Supreme Court can prevent the combined urges of the people. The performance of the Supreme Court in protecting the people against the Emergency contrasts with that of 14 high courts that opposed the Emergency. The Supreme Court let down our people when, on the other hand, the High Courts had protected them. Can any Supreme Court in the world prevent powerful urges of the people from making themselves manifest? Ultimately, you must recognize the limits of judicial power. Every instance in which the Court has exercised the basic structure argument it has done so to protect judicial power. That has been its history for 25 years. I agree with Madhava Menon that it is disconcerting to note that vast judicial powers are sometime exercised by a wafer-thin majority of one or two judges. The question that arises then is, are we to be ruled by judges? What is the position of judges in

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the Constitution of our democratic, representative government? Are they the policy makers or are Parliament and the executive makers of policies? Judges do make laws with their judgements. But essential political policy decisions are for Parliament to make. It is Parliament that is the conscience of the people’s liberties, and judges are only supplementing that. Essential policy must come from Parliament only, and others can only fill in the gaps here and there. Today’s argument is that Parliament is not doing its duty, the executive is not doing its duty. Therefore, judges must step in. This is a very dangerous argument. Certainly the judiciary is not doing its duty, and one day it will get into the head of the executive to say we will fill in your gaps in the same way that you all are trying to do that. If people’s representatives make mistakes, it is for people’s representatives to correct them. Due process can be very effective in matters of civil rights, but not in taking over governance in the name of good governance. P.K. KAUL

We should have checks and balances as they have in the United States. We should have the referendum system because at present you can forget the people who have put you in power, so it should be necessary for you to go back to the people some time. MOOSA RAZA

The competence and the concerns of our Parliament are no longer what they used to be before the imposition of the Emergency. The basic features doctrine is now needed for the protection for our democratic, socialistic and pluralistic structure. It is needed as protection against the tyrannical and oppressive majorities that the democratic process does throw up in our country. The people may have the right to elect another constituent assembly, but that may not be the answer to our fractured electorate. I would also say that a law which is not reasonable in the eyes of a reasonable person is not legal, and Parliament and the Supreme Court must work in harmony. FALI NARIMAN

My heart goes out to Moosa Raza, and I wish more people would think and speak like him. ‘When Parliament does the unthinkable then the courts would also do the unthinkable.’

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PURNO SANGMA

I agree with Moosa Raza’s doubts about the quality of members of Parliament. It is not like the days of Nehru, etc. For that reason we need judicial review. It is the failure of the executive and the legislature that is encouraging judicial activism. By failing to take political decisions on matters that are political and on executive matters that are executive, we not only leave room for judicial intervention in matters that are not judicial, but actually invite it in order to escape political and executive responsibilities. SIVARAMAKRISHNAN

We should view the problem as not only that of a conflict between the Supreme Court and Parliament. The gaps in the Constitution and in the laws for implementing the Constitution should also be addressed. For example, gaps in the ways of ensuring that those chosen to represent the people are in fact representative of the people and, when elected, behave responsibly. GHAREKHAN

It has been a treat to listen to all the luminaries here. I was more worried about the state of our institutions before I heard the debate than I am now. It tells me at least that our institutions are functioning, and checks and balances are working, even if not perfectly. For example, while I share Fali Nariman’s apprehension that if we did not have the Supreme Court’s judicial activism we might have Hindutva coming in, but in fact that did not happen. The people threw out the BJP and brought in whatever we now have. The check of ‘we, the people’ is working, and the basic features doctrine, and the three branches of the state are also working. AJIT MOZOOMDAR

The German Constitution has specifically held some features or articles of the Constitution to be unamendable, and no one has criticized that as undemocratic or challenging the sovereignty of their Parliament or of the people. We cannot do it now because what is at stake now are not only some articles of the Constitution that are presumably well defined, but concepts such as secularism, which are difficult to define with any hope of a consensus on that definition.

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More than the judicial interpretation of constitutional provisions, the concern of the theme paper is the subordination of parliamentary authority to the courts arising from the judicial review of legislation. CONVENER’S RESPONSES TO AJIT MOZOOMDAR

That is not correct. It is not the right of judicial review that has been questioned but the interpolation of due process into the Constitution and the invention of the doctrine. What is held to be unamendable in Germany has been held to be so by the German Constitution, which I presume was democratically made, and not by a court independently of any elective body. The same option has been suggested in my theme paper. The concept of secularism has also been listed there. As for the difficulty about reaching a consensus on the ‘definition of a concept like secularism’, unless that difficulty is overcome the concept cannot be ‘prescribed’, though it may well be preached as a value; and no punishment can be prescribed for its violation unless the law-making authority reaches a wide enough consensus on it for defining the offence. TO PURNO SANGMA

No one here has questioned the right of judicial review. The misgivings under discussion are only about the assumption of some overriding powers by the Supreme Court regarding amendment of the Constitution under a ‘doctrine’ for which there is no direct or even indirect sanction in the Constitution. TO SHISHIR DHOLAKIA

I must compliment the convener for holding this seminar. In the Bar Association we sometimes have conversations on these issues, but no organized effort to examine them. The invitation to the seminar has compelled me to think these things through. I must also compliment the Convener for frankly posing the question that is central to the issue: ‘Has our democracy really failed?’ Because if it has, then we might as well confront that situation. Nowhere in the world does a court go to the extent our Supreme Court does in interfering with the executive’s actions and legislative enactments. This conveys the impression that our elected representatives are not doing their job and cannot be trusted. So

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we must ask ourselves, is there any real failure of democracy, and if so, what is to be done about it? Fali Nariman says I would rather go by the present unelected than the present elected representatives, and Andhyarujina says that is not the role of the court at all, and that if Hindutva were to be our motto tomorrow and a party came to power which said certain provisions of the court would be available to the Hindus but not to other communities, the Court would not be able to stop it with the basic structure doctrine. But that misses the point, because the point is not whether the Supreme Court would be able to override such a wave, but whether the existence of an independent organ of state power is enough to deter the initiation of such a debate. CONVENER’S RESPONSE

That again depends upon how many people want, and how strongly, to have a debate or not to have it. But even while sharing this optimism, I would only repeat what I have said in the theme paper, that in the past too we have been overtaken by contingencies which no one had expected, and may yet be overtaken again in future. Therefore, safeguards should be put in place in time, particularly against a contingency that is already a cause of worry to many, as the present debate testifies. MADHAVA MENON

These are very live issues and will come up again in one form or another. But from what Nariman has said, it appears there is a lurking suspicion that ‘we the people’ do not know what is in their interest and need lawyers and judges to protect them against themselves. It is an elitist view that disbelieves the core values of the freedom struggle itself. Such views are as dangerous as rule by a dictator who we must shoot down within a year as Fali advises us to do. [A reference to an earlier observation by Nariman, quoting Malcolm Muggeridge, that the best government is dictatorship punctuated with assassinations.—Convener] I feel very strongly about it. What happened to Mrs Gandhi when she had the power even to change the complexion of the Supreme Court? It is the people who decided it was time for her to go. If the Supreme Court

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said we, and not the people themselves, will decide what are the core values of the people, we might invite perhaps even a revolution. Besides, the basic structure is very much there. It is in the Preamble and provisions of the Constitution; and we protest against the Supreme Court claiming a sole monopoly over it. Therefore, if Nariman has faith in ‘we the people’, he need not be afraid of a Hindu rashtra by this party or that party. If the people think that Hindu rashtra has to come, no court and no lawyer can protect them against it as Andhyarujina said. Therefore, you should spell out the parameters of the Court’s power, which would be binding on the Court also. It is not acceptable that from time to time the judges may tell us by narrow majorities what are the limits of their powers. Election is the remedy, and political education. I wish to congratulate Pran Chopra for this very timely discussion, and we need to continue it. P.K. DAVE

Pran Chopra has raised an issue of very great import and the brilliant debate that occurred this morning justifies all the hard work he had done for this seminar. But about the doctrine, the general view is that overall the doctrine is a safety factor in the polity of this country, and has put a cautionary provision on the use of its amendatory power by Parliament under Article 368. ‘Yes, there are serious defects in our democracy which must be addressed’, he says, and he gave the example that Parliament is not ‘representative.’ RAJU RAMACHANDRAN

If the Preamble to the Constitution is sought to be amended to delete the word ‘socialist’, the Supreme Court can strike down the amendment as violative of the basic structure. But in the age of growing globalization how long will we remain a socialist country? You may also have to surrender a portion of your ‘sovereignty’, which surely is a part of the basic structure, to the jurisdiction an international economic union if you decide to join it. So the Supreme Court can strike down that too on the same grounds. One facet of this whole basic structure controversy is ‘judicial expansionism’. But we have also seen political surrender, because of a lack of institutional cohesion and institutional pride as far as

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Parliament is concerned. The lame-duck government of Charan Singh surrendered its case on the 42nd Amendment by saying that the validity of the amendment should be tested on the touchstone of the basic structure doctrine. That is why in the Minerva Mills case certain clauses of Article 368 that had sought to undo the Keshavananda judgment were struck down on a virtual concession by a lame-duck government. That is where the political surrender began. When a chastened Mrs Gandhi came back to power in 1980, she was not going to take on the Supreme Court again. Hence, no political consensus emerged for challenging the basic structure doctrine on behalf of Parliament. Nor is there much chance of such a consensus on the part of the ‘political class’. In annulling amendments to the Constitution the Supreme Court has done nothing short of exercising political power. Hence, the need for parliamentary ratification of appointments of judges. At the time of the Golak Nath judgment there was a consensus in Parliament on the rights and powers of Parliament. But today, in a sharply divided polity, the institution of Parliament is being used by parties to settle scores against each other. It is inconceivable that the ‘political’ class will come together to question the power and authority of the judiciary. MOOSA RAZA

I would rather suffer the tyranny of the judiciary than the tyranny of such a Parliament. FALI NARIMAN

Today we are in a position that a Hindu party, the BJP, can in future come into power with a thumping majority—do you want this state to be a Hindu state? I don’t. The minorities don’t. We will all be B-class citizens. SALMAN KHURSHID

A moment comes in the lives of countries when what can only be described as a grand consensus occurs among its people. In India this happened at the time of independence. The Constitution is a product of that magical moment, and we should be careful to see that we do not do anything that disturbs that consensus regarding the essential principles on which the Indian polity is based. We may not get another magical moment.

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Judges are also a part of the constitutional rule of this country, and I am not prepared to accept that a voter has democratic superiority over any other system because there are terrible problems with a democracy that allows 30 per cent of the electorate get a two-thirds majority in Parliament with which it can amend the Constitution. Only a referendum can reflect the will of the people.

ON DAY 2 CONVENER, REGARDING JUSTICE AHMADI’S PAPER

Justice Ahmadi has not only surveyed and summed up the scene very well, but has also opened the door into the next stage of our exercise by pointing out the need for clarification on a subject that has been central to our debate, namely, what he himself has described as the centrality of the Constitution. The Constitution is all the more central in a federal system, and still more so in a federation that is as complex as ours. Our Constitution is the source from which all the numerous components of our vast federal system draw their powers and functions. Hence, it is particularly important for us that whatever is done by our Parliament, the judiciary, legislatures and all public authorities at the federal centre or in the states or at the sub-state level must be done in accordance with the Constitution. The words of the Constitution can be interpreted only in accordance with well-accepted principles of interpretation, and they can be amended only in accordance with equally well-accepted principles of amendment, which means nothing can be abrogated by what seeks only to amend it, and nothing can be amended or interpreted in a manner that violates any other part of the Constitution. The centrality of the Constitution remains undisturbed by any permissible amendment or interpretation. CONVENER, REGARDING PRATAP BHANU MEHTA’S PAPER

There is a coincidental but important complementarity between my theme paper and Pratap Bhanu Mehta’s paper. Proceeding by different routes, Mehta via the judicial system and I via federalism, arrive at the central importance of the Constitution as the ultimate source from which all institutions of governance derive their

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authority. The judiciary has neither the armed forces’ nor the electorate’s mandate for its authority, and for ensuring compliance with its decisions it must rely on a habit of constitutionalism. What weakens constitutionalism weakens the Supreme Court as well. For its survival, federalism also depends upon all stakeholders remaining within the domains defined for each in the Constitution. Therefore, constitutionalism, federalism and the role of the Supreme Court must strike root and grow simultaneously. If any of them is bypassed today, others will be tomorrow, whether by one or another of the many limbs of the governing system, be it federal or central; legislative or judicial or executive; civil or military. Whichever bypasses the Constitution may find itself bypassed as well. PURNO SANGMA

Yesterday, when I was asked a specific question about the role of the speaker in the exercise of quasi-judicial power, under Schedule X of the Constitution, I said as a result of my own experience I had come to the conclusion that this power of the speaker must be subjected to judicial review. That was what I stated yesterday. Now yesterday and today there has been a debate, and it is going to continue in future, on the power of the Supreme Court, the power of Parliament and the executive, Article 368, and so on and so forth. But what is important is what K.C. Pant has said, that we should be discussing the health of our institutions, and how to ensure the harmonious functioning of the three organs of government. There is no doubt that the Supreme Court has perhaps overstepped its own jurisdiction, for example, in the glaring case of the appointment judges, interpreting the word in consultation as concurrence. And one British writer has said, this is the biggest insult ever inflicted on the English language. I can also tell you that the Supreme Court has assumed the power of the prosecutor by asking investigating officers to report directly to it. I do not think it is the business of the Supreme Court. In 1996 I wrote to the speakers of all the assemblies asking them to suggest topics for discussion at the annual meeting of presiding officers. Believe it or not, 100 per cent said we must discuss judicial activism. I did not like the word judicial activism and I

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reworded the subject as the relationship between the legislature, executive and judiciary, and their role. The first conclusion was that the accountability of the bureaucracy to the political executive, of the executive to the legislature, and of the legislature to the people has been completely lost. There is no accountability. The second conclusion was that the legislature has failed to perform the role envisage for it in the Constitution. It has not been assertive in its own areas of competence. We found that on an average assemblies were sitting only for 30 days a year, and some for only for a week or 10 days. Out of 365 days! Pant has pointed out the time lost in Parliament on account of interruptions has risen from 5 per cent to 20 per cent, and the number of sittings has gone down from 138 to 80. So neither Parliament nor legislatures are doing their duties. And that shows their character. I think somebody was asking a question about impeachment. Our Constitution does provide for it, but the provision for contempt of the court needs to be reviewed. Because of Article 129, we are not able to get judicial accountability. When I was a minister I wanted to remove an officer who was corrupt and against whom a prima facie case had been established. The gentleman went to the Calcutta High Court and not only got a stay order, but I was directed by the High Court to promote him to a higher post. I wrote on the file that my order stands. I was prepared to face contempt charges. Of course, the court did not proceed. But how many of us can act like that? How many institutions today are acting as they should? Now about Parliament. I am not defending Parliament, but I can tell you why it is acting as it is today. People do not get attention for their problems anywhere lower down, so they go to their MP and demand that he should take up their matter because their perception is that Parliament is the only forum where their grievances can be articulated. But on a mathematical average an MP gets exactly 39 seconds in Parliament. Therefore, there is a fight for time. This is the ground reality. The reality also is that while the bulk of the people live in rural areas, for most of its life Parliament has consisted of or represented only the elite society, and people who belonged to capital cities represented rural areas. Today, at least 70 per cent of MPs represent their own areas, and people want them to be active because for so many years their areas were neglected. That is the

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reason why Parliament is being described today as a fish market. Matters that should have been dealt with at the panchayat level have to be voiced in Parliament. An MP meets 500 persons a day and receives 4,000 letters a day from the people. So I think what we need to do is to improve the health of our institutions. Unfortunately, good people who criticize politicians do not come into politics. All the educated people talk in their drawing rooms and parties, but they do not vote. It is the illiterate people who are voting. Hence, the quality of leadership that we have. Regarding the powers of Parliament and the Supreme Court in the matter of amending the Constitution, I agree with Pran Chopra. Whatever the Supreme Court decides should be either accepted or rejected by Parliament, and what is accepted should be incorporated in the Constitution itself. Then things would be clear and transparent. M.S. GILL

The subject is very important and calls for further debate, perhaps on a much larger forum, not consisting only of lawyers and judges, but representing many classes of people who are ‘out there’ and are not represented here. They do not share the feelings expressed here by those who run down the elected institutions and elected representatives. The country has not done badly. I totally and passionately agree with Chopra’s paper, with Mehta’s paper, and also with what Sangma was getting on to, about the common people, before he ran out of time. Our Constitution is a beautifully balanced document, but it requires that each institution should work within its limits. As things are working, however, legislative power is being taken away from legislatures. I do not agree with the assumption I see here that the people’s representative are highly irresponsible and others are highly responsible. While ‘we the people have given ourselves’ this Constitution, ‘we the judges’ have given themselves this very dangerous doctrine, which is not reflected in the Constitution, and they have assumed the power of self-appointment in the guise of appointment by ‘consultation’. But matters can improve through constant dialogue and interaction. We should have more consultations like this seminar, and we should also have more politicians in it because they also have their own point of view.

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JUSTICE RAJINDER SACHAR

What would happen if a party that believed in rashtrawad got a majority and this country became a Hindu state (or a Muslim state or anything like that)? Would the matter end with Parliament putting its stamp on it? The basic structure doctrine only says that when the Constitution was made those who made it had a certain secular view. The word secular was introduced later on, but nevertheless they thought it should be a secular state, or at least all should have equal rights. Why do we not look at what happened during the Emergency? In the absence of MPs who might have been in jail three-fourths of those present put Mrs Gandhi’s election above the law. (But the present system of appointment of judges is also wrong. They should be appointed by a suitable commission.) B.P. SINGH

The Constitution has sought to establish a new religion for the Indian polity, as the creator of both Parliament and the Supreme Court, of both the union and the states, and now also of panchayats. All organs of state, the holders of all constitutional offices, as well as the bureaucracy have to consider themselves to be servants of the Constitution. Are we developing that kind of culture of respect for the Constitution? It is in this background that I think the title of the seminar is quite apt, as it seeks to delineate and thus help eliminate any possible conflict between the Supreme Court and the Constitution. H.K. DUA

Even with the basic structure doctrine the Supreme Court could not do much about the Emergency because no one was in a position to invoke the doctrine. So the government went ahead to misuse its power and thus extend the life of the Indira Gandhi regime beyond the duration due under the Constitution. But without the doctrine those in power at that time, like Sanjay Gandhi and others, would have done much worse. Also, where would we go without the basic structure doctrine if some party plays a Gujarat-like card, causes a riot, in the wake of that gets a majority in Parliament, and then proceeds to use the majority in any matter it likes?

LOOKING BACK JUSTICE AHMADI

[In the course of the discussion that followed his paper, Justice Ahmadi made the following additional point.] ention was made in this discussion about the constituent power in Article 368. When Golak Nath was written that power was not there. Pant may correct me if I am wrong. But Parliament assumed the constituent power unto itself by amending Article 368 under the 24th Amendment. So it was not there in the constitution made by the founding fathers. This happened after the Supreme Court said in the Golak Nath case that you cannot amend Fundamental Rights, and this can only be done by a constituent assembly or a body of that type.

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THE CONVENER’S RESPONSES

TO JUSTICE AHMADI These facts are correct, but it is not clear whether they suggest there is some doubt regarding the validity of the ‘constituent power’ written into the 1971 version of the Article. If a holistic view is taken of the Constitution as it was till 1971 and as it came to be afterwards, the following understanding of that Article stands out in both cases:

1. It is recognized that future needs for amending the Constitution must be provided for, and therefore they have been provided for in that Article. 2. It is not intended that any part of the Constitution should be excluded from that power, and therefore nothing has been excluded. 3. No bar has been put on the application of the well-recognized and widely applied principle that the law permits what it does not prohibit. 4. Parliament has been given the sole authority for amending the Constitution because it has been specified that an amendment can be made only be introducing a Bill in either of the two houses of Parliament.

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5. Since the power to make or amend a constitution is called constituent power, that name has been given to the power exercised by Parliament when meeting in that role, making it the only institution that has been given that role since the formation of the original Constituent Assembly. 6. It has also been recognized that a constitutional amendment needs special procedures and majorities, and these have been specified. 7. An additional procedural requirement has been added for amending any of the several Articles listed in Article 368, which by and large relate to the federal aspects of the Constitution, and the reason for listing them appears to be to ensure that whatever relates to federal relations, which are the backbone of the structural unity of India, has the consent of at least the specified proportion of the constituent states. The reason why these clarifications were put into the 1971 version probably was that some judicial pronouncements in the intervening period had raised some doubts regarding the operative portion of the Article in the light of the provisos to the Article and the judgment in the Golak Nath case. Looking back on the numerous sins of omission and commission laid by participants at the respective doors of Parliament and the Supreme Court, things stand out which do no credit to either of the two institutions. But the Supreme Court fares a little worse than Parliament. When the perpetrators of the Emergency sent out their emissaries to state capitals to round up judges for signing on the dotted line of the declaration of Emergency, as many as 14 High Courts refused to oblige. On the other hand, the Supreme Court chose to ‘plumb the depths of silence’, as Nariman puts it in a colourful phrase. CONVENER’S RESPONSE TO P.K. DAVE

Dave’s paper, entitled ‘Is the Doctrine the Obstacle?’, is perhaps the richest in its painstaking enumeration, analysis and illustration of the many ills our governance is heir to. But the title of his paper gives a wrong impression of the contents of the theme paper. I have not held the doctrine responsible for the ills of our times.

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I have questioned its value as a cure, and I continue to question it. I also believe that what the doctrine says and the way it has been used can, and often does, twist the very tools we need for dealing with all kinds of obstacles, including the ones which are the cause of the justified exasperation visible in Dave’s paper. For example, the doctrine obscures who has how much of the constitutional responsibility for doing what, and under what authority. From that arise perceptions that one institution is intruding on the turf given to another by the Constitution. Even if they be misperceptions, they result in half actions by both. The Court can obviously hold the government responsible if it does not take an action commanded by the Court. But if the action has consequences that lead to claims for damages, who will hold that baby? Dave has given an instructive example of the executive following one line of (in?)action before it is told of the wishes of the judiciary, and then taking shelter behind the cloak of the judiciary to hide whatever might have been its reasons for not doing the same earlier. That could not have left anyone any wiser about who is responsible for anything done or left undone. This confusion is partly responsible for what will be discussed later as a basic issue, that democracy is blamed for all that passes under the rubric of ‘majoritarianism’. CONVENER’S RESPONSE

TO A SHOK DESAI AND SOLI SORABJEE One of the earliest speakers on the first day, Ashok Desai, and the last scheduled speaker on the last day, Soli Sorabjee, expressed gratification over the enhancement of the powers of the Supreme Court, whether under the Court’s right of judicial review or under its right to ‘interpret’ the Constitution and all laws, and all amendments to any of these. No one disputes either of these rights. But some results merit second thoughts, apart from the comprehensive reconsideration which the doctrine calls for, and P.P. Rao’s exhortation for ‘deep introspection’ over the whole matter. Both Desai and Sorabjee welcomed the ‘change for the better’, which they said the Supreme Court had brought about by interpreting the right to life (Article 21) as encompassing the right to life with dignity. Sorabjee further amplified the phrase when he said in his valedictory address, ‘The right to live means right to live with dignity. And from there flow the right to health and the

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right to various other assets which make life worth living.’ On the face of it, the change is certainly an improvement. But in the first place the improvement has been brought about, as both of them said, through interpretations of the Constitution, not by importing something extra-constitutional into it, like the doctrine. In the second place the full phrase ‘right to life with dignity’ invites the question: ‘dignity in whose eyes, achieved by what means, chosen by whom?’ To some, ‘dignity’ may mean the right to draw water from the same well as others. For someone who has neither, dignity may mean right to education and livelihood; to another it may mean a house which is not a hovel. How are the ‘right to health . . . and the right to various other assets’ to be shared out? How much of which is needed by how many, as calculated by whom, by what means? Should one kind of dignity have priority over another kind? By whose preference, as measured by whom if not by people elected by the people? Should there be less for everyone so that more may get some, or should there be more for some to make it effective for a few at least instead of sprinkling a bucket on a desert of hot sand? Each option can involve many kinds of criteria for many kinds of ‘dignity’. Each can affect the interests and wellbeing of millions of people, and each can raise major choices for huge issues of governance. Who is to choose and finance what, how much and how? Can a court decide all that without becoming an alternative government, unburdened by public preference as measured in democracies? Or would that only be another name for ‘majoritarianism’? (As for leaving it to courts, a senior advocate narrated how a red light on the car had become a criterion for some judges, and membership of a particular club for some others.) It was more obvious to some participants than to others that each country frames its constitution, or should, in the light of its own historical and current circumstances and needs, and in a democratic country each preference needs to be measured against all others. Therefore, comparing one country’s constitution with another country’s may be proof of erudition, and an impressive amount of it was seen at the seminar, but may not always lead to a correct assessment of the virtues of a particular constitution in its own context.

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For example, some participants said the American concept of checks and balances was a good model to follow. But the concept has more relevance in a presidential system, which may need a balance between the executive and the legislature, than in a parliamentary system, in which the executive is answerable to the legislature and cannot balance it off. A federal system may need a balance between the federal centre and the constituent states, but that issue is irrelevant in a unitary system. Fali Nariman has quoted with admiration something said by America’s Chief Justice Marshall, which must have played a great role in America but is of little relevance to India. Justice Marshall advised fellow judges, ‘Never seek to enlarge judicial power beyond its proper boundary, nor fear to carry it to the fullest extent that duty requires.’ Indian judges have ignored the first part ever since Keshavananda, but have overworked the second part. For a variety of historical reasons, America has had to do without anything that could properly be called a Constitution, and court judgments have done their duty in filling the vacuum. Independent India began life with an abundantly detailed Constitution and the Supreme Court’s duty has been to protect the Constitution against encroachments on the Constitution’s domain by anyone, including judgments. Can the Court congratulate itself for doing that job selflessly? But Sorabjee also suggested a step that would be truly athletic. It showed how a short cut taken out of exasperation with the longer route can land us in a quagmire, or what risks our constitutional system will face if we allow the exigencies of current situations to overshadow constitutional processes and the principles on which they rest. Sorabjee recognizes that what the Constitution provides is procedural and not substantive due process, which the Court has put in place of the former. But he justifies the substitution by asking what harm substantive due process has done in countries that have put it into their constitutions. Commenting on a judgment in a sexual harassment case which read rather like substantive ‘due’, Sorabjee said: As things have happened, I think our Supreme Court, despite the intentions of the founding fathers, has really exercised the power as though they had the due process provision in that. That has gone on for a very long time. In fact, the Court also

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indulges in judicial legislation. Of course, we are happy because the end product is good. . . . Sometimes, purely juristically, they may not be correct. But how long should people wait for the legislation on sexual harassment to be passed? Please understand that. Some dictatorships, at least in their early phases, can pass that ‘end product’ test with higher marks than some democracies can, and any day a fiat can be issued faster than a legislature can pass a law. Yet legislation is preferred by people who value constitutionality and the rights of citizens, and Sorabjee must be right in the front row among them. CONVENER’S RESPONSE

TO H.K. DUA Recalling his closeness to the scene, H.K. [Dua] argued that even with the basic structure doctrine the Supreme Court could not do much because no one was in a position to invoke the doctrine. But nothing could have prevented Supreme Court judges from following the example set by the majority of the high courts, which had disapproved of the Emergency. They did not even reach out for the doctrine at that time. But sometimes it happens that among those who are very close to the scene, the desire to follow the right path is either overtaken by fear of punishment for following it or hope of rewards for not following it. Those affected by the fear cannot be made braver by the doctrine or by the Constitution, any more than those affected by the hope can be made more conscientious. As for the argument that without the doctrine Parliament would run riot, it must then face up to the twin questions: (a) has our democracy failed beyond redemption; and (b) if it has, what is the alternative if it is not that everyone must hold his peace until a revolution either rescues or drowns us? But within the folds of the system as it is, and even as it was before the doctrine was invented, the Supreme Court has the option, for whatever it is worth, either to uphold or strike down a constitutional amendment, whether on the basis of the power of judicial review, which is inherent in a federal constitution, or the accepted principles of ‘interpretation’, or on the touchstone of consistency with the rest of the Constitution and with the constitutional scheme of any part of it.

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CONVENER’S RESPONSE

TO THE DEBATE IN G ENERAL It became necessary, however, to take a closer look at the assertion that ‘the core values of the Constitution cannot be destroyed’, an assertion that was becoming the doctrine of basic features by another name. The core values of a given constitution can only be what they were stated to be when the constitution was made, or which have since been added to it or deleted from it through the amending processes provided in the constitution, and are within the well-established limits of ‘interpretation’. An apex court may also confer some ‘core values’ upon a constitution that has adopted due process. But not if it is governed, as in India, by procedure established by law, because that reserves the privilege of amending India’s Constitution for Parliament ‘acting in the exercise of its constituent power’. But a limitless doctrine does not fit into any of that. On the other hand what does fit in very well is the full scope of ‘interpretation’, which does not deteriorate into interpolation, and it remains within the limits of legitimacy when it tests the constitutionality of any ‘majoritarian’ legislation on the touchstone of the guarantees of equality given to all within the text and meaning of the Constitution, or any special rights given to any communities designated as ‘minorities’ by the Constitution. This legitimacy is not enhanced, and it does not need to be, by any parallels drawn with judgments delivered in America because in the manner of its coming into being and in the extent of its validation in a constitution, the American federation is as different from the Indian federation as two federal systems can be, separated as they additionally are by the fact of one being parliamentary and the other presidential. By virtue of the fact that it is not constrained by a detailed constitution, the American system leaves far more room than the Indian system does for the apex court to determine the content not only of laws but of the constitution too. The more we quote American precedents, the more we strengthen the hand of those critics of the doctrine who allege that the Supreme Court invented it only to lift its powers to the level of those enjoyed by the American counterpart. Democracy is best made stronger by practising it, not by circumventing it, and the deficiencies of democracy are best removed democratically, not by the dictates of a few or one.

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hroughout the discussion everyone agreed, many with added emphasis, that the Constitution is the final embodiment and repository of India’s sovereignty. So did many of those who swore by the ‘doctrine’. But among the latter there were some who maintained, a few with added emphases here as well, that in some respects the doctrine could override the Constitution, notably in the matter of amendments. They were unimpressed by the clash between, on the one hand, the position clearly spelt out in the amendment Article of the Constitution, Article 368, and on the other hand the position resulting from the doctrine. That Article empowers Parliament to amend, or even repeal, ‘any provision of this Constitution’ so long as it does so within the terms of the Article. But the doctrine in effect maintains that nothing can be amended that the Supreme Court, acting under a rule woven exclusively out of its own authority, decides to classify as unamendable, regardless of the amendment being fully compliant with 368. Therefore, one could only be baffled when one of the best known legal minds in the country asked ‘what is the clash?’ In the course of a spirited and comprehensive presentation, which was superbly lucid, Soli Sorabjee said, ‘Now I never understood the other point which my good friend Pran Chopra has made, that there is a clash between the Constitution and the Courts. But what is the clash?’ The mystery cleared a bit when he went on to say, ‘The power of interpretation is with the Court. That has been well laid down from 1952.’ What I had questioned was not the Court’s right to interpret the Constitution but to override it on the sole authority of a ‘doctrine’ which is nowhere to be found in Constitution, or to put into it what had been rejected in the making of the Constitution. This might have given Sorabjee the wrong impression that I had questioned the Court’s right to interpret the Constitution. (Earlier the same day I had been glad to find myself in the good company of former Chief Justice Ahmadi in questioning the interpretation of ‘consultation’ as ‘concurrence’.)

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As past experience shows, the Supreme Court can at any time add any Article of its choice to its list of unamendable Articles by the simple device of declaring it to be a ‘basic feature of the Constitution’ under the ‘doctrine’ and thus making it unamendable without worrying too much about Article 368. This is further proof of what has been pointed out earlier, that with the authority of such a precedent-setting institution as the Supreme Court, the ‘doctrine’ can circumvent the Constitution and, thereby, each time it does so, undermine its authority. On the other hand, if the Supreme Court made each addition to or deletion from the list on the basis of arguments resting on the Constitution, it would help further elucidate and consolidate the Constitution. Sometimes an issue becomes clearer if it confronts you in a starkly candid form, and participants in the seminar should be grateful to Fali Nariman for doing just that for them on the question of who controls whom in the relations between the Supreme Court and the Constitution in this context. The parliamentarians among the participants might have been taken aback by what Nariman had said in an earlier writing, which had been quoted the theme paper. Writing in The Indian Advocate, he had said: In reading implied limitations in the amending power, the Supreme Court of India had certainly made new law. The majority view in Keshvananda [sic] was criticized as an assertion of naked political power in the guise of judicial interpretation. By propounding the basic structure theory, the guardians of the Constitution [it was said] had at one bound become guardians over the Constitution. Constitutional adjudicators had assumed the role of Constitutional Governors. The criticism had considerable validity. At least the seminar knew where Nariman stood in this matter. What he had said in effect was that not only could the Supreme Court also ‘make new law’, it could also amend the Constitution. Not only could, but in fact had just done that in a two-step operation: by first ‘reading implied limitations in the amending power’ and then, second, filling the gaps left by the ‘limitations’ on the basis of its non-existent authority derived from an invalid doctrine. There are no implied or stated limitations in the

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Constitution, which clearly says ‘any provision’ can be amended in accordance with the amending Article, 368. This Article also lays down clearly that the Constitution can be amended only by the introduction of a Bill in either of the two houses of Parliament ‘meeting in the exercise of its constituent power’. But meeting as ‘constitutional governors’ under the canopy of the ‘doctrine’ judges, according to Nariman, can ‘imply’ limitations and then replace them with judge-made laws that would have the status of constitutional provisions. All this and much else in Nariman’s intervention was in keeping with his forthright manner in saying what he had to say about ‘majoritarianism’. This is a novel ‘ism’ that, as will be discussed later, swears by democracy but reserves the right to disown a democratic choice if the result happens to be unpalatable. The problem in the meantime is that just as Sorabjee, as mentioned earlier, was not impressed by ‘the clash between the position clearly spelt out in Article 368 of the Constitution, and the position resulting from the “doctrine’’’; similarly, Nariman was not impressed by the conflict between the position he allots to the Constitution in his scheme of things and the position allotted to the Constitution in the making of the Indian union, and particularly the federal aspects of the union. In his article in The Indian Advocate, Nariman makes an observation that, although apparently made only in passing, reveals more than perhaps he intended. He says, ‘The power to declare the law, an American judge once said, carries within it the power, and within limits the duty, to make law where none exists.’ In the next sentence, to which reference was made earlier, Nariman adds, ‘In reading implied limitations in the amending power the Supreme Court of India has certainly made new law.’ These two sentences put a probably unintended but an unerring finger on a hornet’s nest of problems. The following are some of them: 1. As has been observed earlier in the present writing, and more than once, comparisons with Britain, which has nothing that can properly be called a constitution, and with America, which has only the rudiments of one, have misled many commentaries on the Indian Constitution. The present one by Nariman is only one more example.

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2. What most makes such comparisons misleading is that India has one of the most detailed constitutions in the world, which, in the first place, covers most of the constitutional circumstances that existed or could be foreseen at the time it was made; and in the second place has provided far-sighted mechanisms for meeting requirements that could not be foreseen. 3. As a result of point 2, there are not many areas of space or activity in India where there is neither a legislative nor a constitutional provision, nor either a legislative or a constitutional mechanism for dealing with existing or foreseeable or unexpected legal or constitutional requirements. That is why what the American judge called the ‘where none exists’ situation does not exist in India. 4. There are, of course, many large areas in which the legal and constitutional requirements have not been met by the concerned legislative and executive institutions. But, as P.K. Dave demonstrated at the seminar, the Constitution has amply empowered the judiciary not only to prod these institutions into action, but also to require them to perform their duties within stipulated time frames, or else face the consequences. 5. Unlike Britain, where Parliament is all-powerful, and America, where the federal court is nearly so, in India the powers of both equivalents of these institutions have been defined in the Constitution and the definitions cannot be transgressed. Failure to recognize these differences and their implications is the most common reason why commentaries comparing the three countries go off-track. 6. There is neither any need for nor any logic in the position that though it is the sole source of all authority that any constitutional institution has, the Constitution must subordinate itself to one of them, that is, the Supreme Court, under a doctrine that finds no support and no reference in the Constitution. To be above everything and yet below some is a contortionist position that a constitution cannot sustain for long. That makes Nariman’s position more difficult to reconcile with the Constitution than the position taken by any of the other

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participants. Supporters of the doctrine may well ask, though they did not at the seminar: Aren’t all laws and amendments made under the authority of the Constitution subject to ‘judicial review’ by the Court even though the word ‘judicial review’ is not to be found in the Constitution? If so, then why can’t the doctrine draw authority from unrecognizable sources? There are three answers to that question, and they are given in an ascending order of their infallibility. The first was given by Sorabjee in the course of his valedictory address to the seminar. He explained that at a crucial stage of the discussion on amending powers in the Constituent Assembly, the executive’s power to put some restrictions on certain rights was being debated. At that stage Pandit Thakurdas Bhargava got an amendment through, which said the restrictions must be ‘reasonable’. Since the meaning of the word ‘reasonable’ in a given context was subject to interpretation, and the task of interpreting it could be given only to an authority that was independent of the executive, it was given to the Supreme Court, and thus the concept of judicial review came to be accepted ‘to some extent’. That ‘some extent’ expanded because, as Justice Ahmadi explained, a constitution has to be seen as a whole and individual provisions of it have to be looked at as a part of that whole. That is why in my response to him I said he had brought the centrality of the Constitution back to its rightful place in the debate. That, from the opposite end, is also the core message of the foreword by the Speaker of the Lok Sabha, Somnath Chatterjee. Justice Ahmadi had said, ‘The power of judicial review is not specifically provided anywhere in the Constitution. But . . . you have to take a wholistic view of the Constitution. That is why nobody says today that the judiciary does not have the power of judicial review.’ The speaker added, ‘If any organ of the state arrogates to itself any power, having a sanction only in terrorem, which under the constitutional scheme belongs to any other organ, it will cause a serious imbalance in our Constitutional set-up.’ This is the second reason. The logic of the wholistic reason is the third and strongest argument in favour of judicial review. The duty of ‘constitutional

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adjudicators’, as Nariman had described Supreme Court judges, is not only to judge the constitutionality of individual Articles of the Constitution or of any amendments to them, let alone words and sentences of the text. They also have to look to the consistency of the constitutional scheme as a whole and the internal consistency of different parts of it. The Indian Constitution has not given the Supreme Court any power ‘to make law where none exists’, as claimed by the American judge quoted by Nariman, even though their interpretation of what exists may also have the pro tempore power of law. But it is a part of their constant responsibility to ensure that what exists is interpreted or changed only in accordance with the Constitution as a whole, only to the extent that it does not become inconsistent with the whole or any part of the constitutional scheme, and the interpretation is brought into force only after the inconsistency has been resolved. This will be discussed some more as part of a later discussion on the dynamics of federalism and the constitutional imperative. But four points need to be noted here: One, this responsibility is so extensive, so deeply embedded in the Constitution, and so empowered by it that it can deal with anything that the Court finds to be inconsistent with the Constitution, let alone violative of it, and all that the Court needs for dealing with the inconsistency is the power of judicial review it already has under the Constitution. Two, and as a consequence, anything like the doctrine becomes redundant at best and at worst discordant with the Constitution. Three, given that federalism is the bedrock of the unity of India, and Article 368 has a strong federal aspect to it, any amendment of the Constitution made in a manner which bypasses that Article can have adverse implications for that unity. That, for example, would be the implication if an amendment that affected the rights of states did not take effect through Article 368, which prescribes a clear role for state legislatures in amending the Constitution, but through a decision by the Court, which has no federal face at all. And four, for all that the power of judicial review is extensive and backed by the Constitution, it does not extend to striking down an amendment or a law on any such grounds as standards of propriety except to the extent that these may have become a part of the country’s laws or the Constitution.

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To quote the Lok Sabha Speaker again: The framers of our Constitution took utmost care to provide for an independent and impartial judiciary as an interpreter of the Constitution and the custodian of the rights of the citizens. However, they envisioned that the courts too have the mandate only to interpret the laws and not to enter into a discussion as to what the law should be nor to lay down general norms of behaviour for the government and the people to be considered binding on all as the law of the land. The scope of judicial review thus is confined to see whether the impugned legislation falls within the competence of the legislature or is consistent with the Fundamental Rights guaranteed by the Constitution and its other mandatory provisions. Of course, the most basic of all basic issues before the seminar was whether practicable means were available for bridging the differences, sometimes sharp, between the views most often expressed at the seminar on some of the more important issues. In this respect, the seminar was very productive and encouraging. A number of recommendations were made, and when I take them up a little later it will be seen that there would be little real difficulty in implementing most of them if political prejudices did not come in the way. But there are two issues that are only as easy to resolve as it is to square a circle. The first has been discussed and can be given some rest, namely, the position of the Constitution in relation to constitutional institutions. The second concerns ‘majoritarianism’, and it hung over the seminar from beginning to end, waiting to see whether the learned gathering would pronounce the end of democracy. Anyone ‘waiting to see whether’ must have perked up on hearing some of the following interventions. (They did not take place exactly as in the order given, but more or less. They began half way through the first morning and continued into the second.) First, a participant, Moosa Raza, said, ‘[The doctrine] is needed as protection against the tyrannical and oppressive majorities which the democratic process does throw up in our country. . . . I would rather suffer the tyranny of the judiciary than the tyranny of such a Parliament.’ To that, Nariman responded, ‘My heart goes

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out to Moosa Raza, and I wish more people would think and speak like him.’ A little later in the morning Nariman added, ‘Today we are in a position that a Hindu party, the BJP, can in future come into power with a thumping majority—do you want this state to be a Hindu state? I don’t. The minorities don’t. We will all be B-class citizens.’ Reacting to that, another senior advocate, Andhyarujina, said, on the other hand: What happened to Mrs Gandhi when she had the power even to change the complexion of the Supreme Court? It is the people who decided it was time for her to go. . . . Mr Nariman says the basic features doctrine will prevent a Hindutava type of situation. If we are foolish enough to want a Hindutava type of country no Supreme Court can do anything to prevent it. No Supreme Court can prevent the combined urges of the people. . . . The performance of the Supreme Court in protecting the people against the Emergency contrasts with that of 14 high courts, which opposed the Emergency. The Supreme Court let down our people when, on the other hand, the high courts had protected them. . . . Can any Supreme Court in the world prevent powerful urges of the people from making themselves manifest?… Ultimately you must recognize the limits of judicial power. In the afternoon Senior Advocate Shishir Dholakia confirmed that the seminar was not the first gathering to worry over the matter. He said, ‘I must compliment the convener for holding this seminar. In the Bar Association we sometimes have conversations on these issues, but no organized effort to examine them. The invitation to the seminar has compelled me to think these things through. I must also compliment the convener for frankly posing the question which is central to the issue, ‘Has our democracy really failed?’, because if it has then we might as well confront that situation.’ Raju Ramachandran, another Senior Advocate and a critic of ambitious ‘interpretations’ by the Supreme Court, regretted that ‘it is inconceivable that the “political” class will come together to question the power and authority of the judiciary’. Madhava Menon, who had opened the discussion in the morning

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replied to it, and then said, ‘These are very live issues and will come up again in one form or another. But from what Mr Nariman has said it appears there is a lurking suspicion that “we the people” do not know what is in their interest and they need lawyers and judges to protect them against themselves. It is an elitist view.’ Next morning it was K.C. Pant who picked up the thread and advised the seminar that the defences of democracy must be built in the hearts and minds of the people. He said he fully agreed that the essential features should be protected, but the best protection for them lay in building protective ramparts in the minds of the people which will not be breached. That is the ultimate sanction for all political parties, for all democratic institutions. So long as the people support them and those ideas, and see that they are in their interest, those principles will be protected. This, he said, is something we have to understand fully. Otherwise we will tend to attach too much importance to form and not enough to substance. But the form can also be a stumbling block if it appears to some people, as it appeared to some at the seminar, that parties that equally abide by the same electoral laws need not have equal rights to fight and win elections. Obviously, laws governing elections must apply equally to all parties so long as they remain within the limits of the law. Voters may reward or punish them for their views, but electoral laws are only concerned with fair observance of the law. Laws can be changed as needed, but they can be adopted only if they have the support of the majority of the members. Parties cannot be denied the advantage of their numbers, whether at the hustings or in legislatures. Nor can they escape the disadvantage of a lack of numbers. There should be comfort in the fact that laws for ensuring fair elections have also been made by ‘majorities’, and they do not permit numbers to be counted on the basis of definitions that would create permanent ‘majorities’ and ‘minorities’. But how long that advantage will last will fall into doubt if majorities and minorities came to be defined, as at the seminar (and more by those who spoke in the name of minorities than by others), on the basis of the same permanent distinctions of caste and religion, which, happily, have been rejected by electoral laws, except marginally for acutely disadvantaged castes. The divisive effect on

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politics will be the same whether the target of praise or blame is those who are seen as ‘majoritarians’ by ‘minorityists’ or the other way round. The democratic electoral process will be hurt in both cases, and whether the effect will be more heavily felt by the majority or minority will vary with the point of view, not the facts. The target has shifted 180 degrees in the relatively short history of majoritarianism so far. At the seminar the target was the BJP, which had not even been heard of when the doctrine was first formulated on the basis of Keshavananda. The target then was Mrs Gandhi’s garibi hatao politics. The target some time hence might be democracy if a party that is unpopular with the formulators of targets wins a ‘majority’ of votes and begins to act accordingly. I doubt that in the meantime a formula would have been evolved which would convert a party’s majority share of votes into a minority share by constitutionally acceptable means. This is one of the ways in which constitutional principles have been subordinated to the exigencies of current politics, to the unfortunate neglect of the contrary and thoroughly democratic and constitutionally valid principle that what is desired by way of making or blocking a change in the Constitution is first carried to the people, then into Parliament by electoral means, and thence into the Constitution by way of an amendment with the ‘majority’ of the electorate backing the change. Sorabjee and Mozoomdar gave several examples of countries in which some restrictions have been placed on the power to amend the constitution. But in all of them it has been done under the authority of a constitution framed by a democratically elected body, not as the result of the openended exercise of an undefined power by an unelected body. On the contrary, Sorabjee had some words of praise for many changes, which, as he admitted, had been made by extra-constitutional means but which he admired nevertheless because ‘the results had been good’. So have been the results claimed by many a dictatorship, at least for a time, thus not only justifying the means by the ends but undermining that whole charter of ends which is what a constitution is all about. Like many other personalities in the world of law and justice, Sorabjee agrees that the Supreme Court has put things into the Constitution that were not there, and even some, like ‘due process’ that the Constitution makers had rejected, an exercise that goes beyond interpreting the Constitution. But in

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an act of athleticism he justified the exercise because the ‘end product is good’. At the end of the day the seminar was left facing two questions, pointing to diametrically different answers: Do we believe that our federal parliamentary democracy has not failed us but needs improvements? Or do we believe that it is intrinsically wrong or unsuited for us, therefore destined to fail, and what we are witnessing is the inevitable unfolding itself? If we started off with the first question, the answer would that a serious effort should be made to carry out the required improvements through the ample means available within the system for making the improvements democratically. If the second question is the starting point then an effort should be made to replace democracy through a national consensus. But almost every recommendation that came before the seminar, from the theme paper onwards, pointed towards the first question and the feasibly democratic answers suggested by it. The only exception was the expectation that by some democratic means it may be possible to convert a democratically ascertained majority into a minority, or to give the latter a veto that goes beyond the protection the Constitution gives everyone against any discrimination.

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change more relevant to the dynamics of federalism in the recent past, and which can perhaps be more potent in the not distant future, was that the dominance of nationallevel parties over state or regional level parties became more fitful and weaker, and virtually disappeared for spells of time, while the scope for clusters of state level parties to intervene in the fortunes of federal governments expanded from one election to the next. A symptom of the latter phenomenon was that in the mid-1980s an entirely new actor appeared on the stage of federal politics, the Conclave of Chief Ministers. During and near about those years state level parties captured power in state elections in about half a dozen states, and this happened in the midst of the most aggressive (mis)use of the Constitution by central parties for settling scores with state parties, which had been ousting them from power in state after state. To develop their own protective leverage and to increase their elbow room in national politics, the chief ministers of a number of states (at times at least half a dozen) formed their power group as a trade union. The designated group did not last very long in the face of rivalries within the group, and powerful manipulation of the same by national level actors. But the event became a landmark in the evolution of federal politics. The event was qualitatively different from the periodic rebellions staged in the past by state level actors against those, of the same party, who were in power at the federal centre. It was an intentional manifestation of the growing assertion by states in federal politics, both at the central and state levels. Many contemporary analysts saw this development, and others have continued to see it so since, as the beginning of the end of the sense of Indian nationhood. The idea of India as a nation, which had been shared by many but articulated by few until the freedom movement began, had seeped very widely among the people during the movement. Since then it had grown into a sense

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of national pride, watered by the country’s successful passage through many crises up to the early 1970s, not least the democratic and stable successions in 1964 and 1966, success in war in 1971–72, and the triumphant return of democracy a bare three years after the trauma of the declaration of Emergency. But the events of the second half of the 1980s brought back memories of the prophecies of doom that had been made in the 1940s. The fall of one federal government after another, whether because of the incompetence of the incumbents or the machinations of those in control of one or another corner of the country (or corner of the world as some would say), it became easy to give in to the belief that the game was up. But in fact India was only going through another round of the same process of national consolidation that had made India possible and had sustained it thrice before, in the late 1940s, in the mid-1950s and in the late 1970s, with a level of success that had defied sceptics and left optimists feeling elated with vindication. In each of the three periods of success India gained further experience of the essential principle of federalism, that a totality is best consolidated by giving space to its diversity. In the first experiment it succeeded in consolidating the enormous political diversity created by over 500 ‘states’, which, as hoped by a few of them, could have gone their own separate ways if they had wanted to do so. But India retained them within the fold by inviting each state, or each cluster of states, to negotiate its own terms for booking a place in the Indian totality, becoming a partner in shaping the whole, and making it more attractive for most of them than any feasible alternative. With the second experiment India succeeded in consolidating its enormous linguistic diversity, bigger than of any other country in the world’s present or past, by giving to each of its major components a space that it could call its own linguistic home. In the third experiment it laid the spatial foundations of an Indian brand of federalism, which in fact is what made India possible and, as mentioned earlier, had resulted from a merging of the two conventional routes to federalism: one, independent states coming together to form a federation to get a bigger total than the sum of its parts; or two, a unitary state converting itself into a federation to give more scope to its constituents to govern themselves.

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This Indian brand of federalism had been registered earlier, and inscribed in Article 368 of the Constitution. However, for 30 years India did not have either the need or the chance to experience its reality because whatever the provisions of the Constitution might have been, the political reality was that the same single party, the Congress, was in power at the federal centre and in most of the constituent states, and its own internal power structure was more highly centralized than in many unitary governments. Some states began to slip out of the Congress net in the mid-1960s. But the nature of power at the federal centre and in a significant number of states began to change only in the late 1970s. In the course of a few years it changed sufficiently for the states to acquire a sense of their own strength, and the change came to be symbolized in the formation of the Conclave. This change gave a new dimension to the dynamics of Indian federalism. No longer was it the case that an odd state level politician was co-opted into the power group at the federal centre and moved up into it, or was moved downward if he fell out of favour. The command authority also ceased to be a simple ladder on which orders could move only up or down along the hierarchy within a single party. Like a biological creature, Indian federalism also ceased to be a simple organism that needed to perform only a few functions and only a few organs to perform them. Instead, it became a bigger and more complex organism, requiring to perform many more functions and needing specialized limbs and organs to perform them. Correspondingly, its power structure ceased to be a simple ladder and became an intricate web on which commands moved up, down or sideways, and it was the sum total of all these movements that determined the direction at any given time. The change became still more rapid and complex when, in the course of time but with an inevitability peculiar to democratic federalism (federalism is inevitably democratic but democracy is not inevitably federal), many more parties came into being, each answerable to a different segment of society, some answerable to it at the federal level and some at the level of the concerned constituent, so that few governments could be formed at either level by a single party. A party in the government at one level of the federal ladder could be in the opposition at another level, and

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yet both would be obliged by their responsibilities to operate to each other, whether on the same or different links that made up the constitutional network. This certainly led to cross-connections, lines of command often became invisible, and they became all the more so as governmental responsibilities became more complex and in discharging them many more parties, with their divergent motivations, began to put their own irons in the fire.

CONSTITUTIONALISM

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During the long history of the Indian polity or polities, there had always been some visible, palpable symbol of sovereignty that anyone could recognize as such, be it a king, conqueror, president, charismatic leader or some collectivity of individuals called a parliament or something else. In that symbol lay the ultimate source of the authority of all decisions taken by whatever was seen as ‘the government’ in any particular situation. But when India became independent, all the hundreds and millions of its people faced a new challenge to their political imagination, because all those comfortably familiar symbols of their ‘sarkar’ were going to be replaced by a tome called the Constitution. How huge was the challenge of this adjustment came home to me only very recently. In the course of my innumerable conversations in connection with this seminar, an English visitor said he was puzzled by my view that our Parliament was not sovereign, that it was subject to constraints which were not prescribed by some king, commander or pope, but by a non-scriptural book written only a few decades ago, and in exasperation he asked how could the sovereignty of a billion people be limited by a piece of paper? Perhaps he went away thinking that like all Indians through the ages the modern one had also tied himself to a book. In the course of time the commandments in this ‘book’ were going to be as binding on the actions of our governments as those of one book or another had been on the thinking of most our people. But in the beginning they were not fully understood. Not even by Nehru, as quoted near the start of this theme paper which was more like the Convener’s poser to the seminar. Nehru had some unsustainable notions about the lines between Parliament’s

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authority and the Constitution’s. That is why, quite contrarily to the structure of the Constitution, he could say, ‘No Supreme Court and no judiciary will sit in judgment over the sovereign will of Parliament. . . . Ultimately, the whole Constitution is a creature of Parliament.’ Many other people continued to be puzzled for much longer by another feature of the Constitution, which was also unfamiliar to India: that every part of India had some authority that stood apart from the authority that sat in New Delhi. To them the sarkar had been up there in Delhi for so long that up there it remained in their minds. The two days of intense discussion at the seminar certainly showed that the interactive dynamics of federalism and constitutionalism have gone deep down into the Indian political awareness. But they also showed two other things. First, acceptance of the centrality and supremacy of the Constitution still has some way to go before everyone will start turning habitually to that piece of paper for answers to many of our political conundrums. Second, our understanding of the dynamics of federalism will grow only as fast as our acceptance of the supremacy of the Constitution does. Two remarks heard before the seminar was halfway through illustrate the point. In the course of one of the sessions on the first day, Senior Advocate Raju Ramachandran said that while the Constitution forbids surrender of any part of the sovereignty of India, some such surrender occurs when, in the process of globalization, India accepts the jurisdiction of some international organizations. While inaugurating the second day’s proceedings, former Chief Justice Ahmadi recalled that sometimes it is asked whether India is a federation, because so much power is concentrated in the hands of the union government, and (as he might have added) because the Constitution does not even name India as a federation but as a union. An earlier draft of the Constitution did call India a federation, and for a time continued to do so till after Partition. But the final text called it a union. This change came about because in the meantime the opinion had grown that the ‘central’ government would be weaker in a ‘federation’ than in a union. Hence, the preference for the latter term among many, for all that it is an inaccurate label for the Indian polity. There was also the lurking

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possibility, never officially acknowledged as far as one knows but mentioned in a private conversation by an often-quoted member of the Constituent Assembly, that a three-part scenario might unfold at a future date in which a firmed up ‘union’ of India would be in a better position to play out its role. The first part could be that the former East Bengal may wish to rejoin India to restore a united Bengal in honour of the ‘Bengali’ sentiment that had survived the Partition; second, that this might trigger the possibility of an India–Pakistan federation; third, an India already consolidated into an indivisible ‘union’ would be in a better position than one in which any major part of a future ‘Indian federation’ may wish to have only the same loose type of ties with New Delhi that Pakistan could be expected to accept. It is common sense of course that no ‘surrender of sovereignty’ is involved if some independent entities, in the light of what they see as their shared and enlightened self-interest, decide to pool some part of their sovereignties in the hands of a new entity in which each of them has a share and which each agrees to accept without right of secession. (If the right to secede is retained, then of course it is only a marriage of convenience, not a federation.) Nor is there a ‘surrender’ of any part of the sovereignty of an existing entity if, in the interests of what it sees as a better way of self-governance, it decides to transfer some of its powers to new entities that then become its constituents in a federation. Both of these are ways of sharing out sovereignty, and neither involves ‘surrender’ of any part of it. But in both cases it is the Constitution, not someone’s crown and sceptre or holy mace, which guarantees each constituent’s stake in the sovereignty of the whole. In fact, most federations are formed and sustained only in one of these two ways. But the Indian federation is a bit of an exception, which only adds to the difficulty people experience in placing India on the spectrum of federations. India became a federation in a mixture of the two standard processes. On the one hand, in the labyrinth of the debates in and around the Constituent Assembly the units that constituted ‘British’ India, better known as its provinces, accomplished two things: they agreed to a new sharing out of the very limited sovereignty that Britain had left for India under the 1935 Act, and then agreed to the sharing out of the new dimensions of sovereignty that India acquired on becoming

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independent. On the other hand, in a simultaneous and parallel second process, the rulers of each of the princely states (sometimes collectively called ‘Indian’ India), who in theory had the right to opt for independence, negotiated their own terms, individually or in groups, for accepting the sovereignty of the newly emerging union of India. In the process they became full partners in the task of framing the Constitution, each with an equally guaranteed stake in the full sovereignty of the new union. The two processes merged together in the debates and votes under the dome of the Constituent Assembly as they joined, with neither side ‘surrendering’ its sovereignty to the other, to form the most populous, and indissoluble, federal polity the world has seen, encompassing perhaps the world’s most complex political society. This has a meaning, to which one can come later, for the centrality and supremacy of the Constitution, and constitutionalism for the survival of the federation. Similarly, a deeper issue than one merely of definitions is at stake in the remark by former Chief Justice Ahmadi that sometimes India is called a ‘quasi-federation’ because of the huge centralization of power in the hands of the union government, which is often but erroneously called the ‘central’ government. Delhi holds more of the domestic political power of the Indian federation than Washington holds of the American. But that does not make India less of a federation than America is if one measures the federalism of each by a more relevant yardstick, namely, the source of the power at each layer of the federation. Were the degree of decentralization of power the sole measure, no country, and certainly not the USA, would deserve to be called a federation in comparison with the Swiss federation. The constituents of the latter, the cantons, have a share of power in the affairs of the Swiss federation that the constituents of no other federation can boast of. The true criterion is not how big or small is the slice the constituents have in the total cake of the power of the federation. The true criterion is the source of their share. Has the country’s capital ‘devolved’ some power upon the constituents, which would imply that the capital has the right to withdraw any of that power at its own discretion, or do the national capital and the constituents’ capitals draw it from a source to which all of them have equal access, and from which all draw equal guarantees for the protection

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of their respective powers? The government of the ‘union’ of India cannot take away any power of any constituent of the Indian federation that the Constitution has given it, and no constituent can encroach upon any power of the union that the Constitution has allotted to the latter. The Supreme Court is the referee for ensuring that all parties respect the sanctity of these dividing lines. The lines can be redrawn, but only according to the provisions laid down in the Constitution for redrawing them, and compliance with the provisions again has to be certified by the Supreme Court. If the political reality of the Indian federation is rather different from what these constitutional definitions would suggest, it is because of a condition shared by all federations, and indeed by all polities, that while the ebb and flow of politics may be directed into channels defined by the Constitution, the speed and volume of the flow, and indeed even its direction, depend upon factors in which the Constitution can intervene only when they threaten to become unconstitutional. It was under the same Constitution that, roughly, during the first half of the era of independence, the national level political parties, which are generally the main actors at the central level of federal politics, were able to exercise much greater political clout over the polities of the constituents than has been written for them in the Constitution. And in the second half of that era it came to be the turn of the regional or state level parties to do the same to the polity at the centre. If in the former phase it was national level parties that denied breathing space to the political formations that were coming up at lower rungs of the federal ladder, in the latter phase it was smaller parties that, sitting astride the lower rungs, sometimes pulled the ladder away and brought down the central government. The reason for this fairly dramatic change of federal fortunes lay in the changes that took place in the nature of parties and their politics rather than in the aims and provisions of the Constitution. The latter continued to be only the regulator of the arena in which parties played out their roles. But the nature of party politics began to change very rapidly from about the second half of the 1960s. Until then the number, nature and objectives of parties, and their constituencies, had changed but little year after year. In fact there was really only one party, the Congress. But later it became virtually a free-for-all in the matter of how many parties would

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enter the fray, what would be the constituencies on whose behalf they would do so, which parties would see which other parties as their friends or foes in any political contention, and which party would show the door to which. But this is only one side of the federal reality. The other side is that all parts of India have become much more of an interconnected and interdependent whole than they have ever been, even if they have yet to become a fully integrated whole. A party that was in power at both levels created extra-constitutional linkages between the two levels, and on the other hand a party in power at one level but in opposition at the other gave to the actors at both levels added perceptions of inter-party relations in the coalitional arrangements, which became more the rule than the exception at both levels. More of them came to know each other better than they did before, needed to and often did understand each other better, became more interdependent because whatever one did affected the others more, and on some matters more of them began to pull in the same direction than they used to, even though more meeting points between them also meant more friction. To say this, of course, is to beg the question whether the same thing would not have happened more or quicker or better if India had opted for a unitary system. It is difficult to answer the question which in retrospect is only hypothetical. But it does in turn beg an equally hypothetical question: would as many entities as agreed to join a federal system have been equally willing to join a unitary one? The answer would probably be in the negative if one went again through the complex history of negations between ‘Indian’ India and India of the provinces, or if one recalled the contrast between the linguistic turmoil before the linguistic reorganization of states. But there is nothing hypothetical about the advantages that accrued to India from the federal system, nor about the advantages that India has failed to harvest. Some examples of both kinds will follow. But to understand them one has to remember the circumstances in which India came into being. The dominant event of those times was Partition. It might have partly resulted from the mistakes made by leaders of both the Congress and the Muslim League; historians were later to heap much blame upon Nehru. Mischief by international and particularly British

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policies might also have contributed to it. But fear of the partition of India into more than just two countries was very much in the air. Therefore, there was a general if informal agreement among the leaders of the day that it would be better to wait a little more for the willing consent of those that India was inviting to join the union than to risk what might have been by triggered by an attempt to hustle them in. All the more so because of the hope, vindicated by later events, that once remaining together was achieved coming closer would follow. Larger examples of this vindication came from British India, and the best was the successful linguistic reorganization of states, which followed a few years after the accession of princely states had been completed. But an interesting example came from the reorganization of princely states themselves in the process of their accession. In the first phase of this process most of the states had acceded in ones and twos. But very soon afterwards states that were near each other and had a shared historical background were grouped together in clusters, and each cluster was brought closer to the status given to the provinces of British India. The states that were brought together in some of the clusters, like those in Madhya Pradesh, Punjab and, most so, Rajasthan, had longer histories of rivalry and even armed conflicts between them than of cooperation and living together. Some of the states that were clubbed together in Rajasthan had proud memories of these rivalries. The orders of royal precedence that had resulted from the conflicts, or from older lineages, were jealously protected and projected. But after a few more exercises of reorganization and collective administration they settled down to their new identities as members of the federal union, with their status and powers defined in the simple pages of the Constitution, not the gilt-edged pages of court protocols, and little was left in their present lives with which they may re-live their past royal pride or antagonisms. Within a few years most traces of their separate lives disappeared from the daily lives of the people. Some irritants did remain within some newly-formed states between portions that the new state had inherited from different ‘princely states’. For example, in Karnataka between portions inherited from the former states of Mysore and Hyderabad, respectively. But this was largely because of the difference between the

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levels of economic development these portions had reached before independence as a result of the differences in the economic outlooks of the Maharajas of Mysore and the Nizams of Hyderabad. The economic policies of the new state of Karnataka impacted differently upon these differing portions, and resentments followed that gave rise to allegations of ‘discrimination’. The wonder is not that such allegations arose, but that they were so few or evaporated so quickly, particularly in Rajasthan, where the historical background had been so conducive to their persistence. But the pressures of a multi-party and mass-based democracy did cause many distortions in Indian federalism, particularly during the 1970s and 1980s. A common form of distortion for many years was induced floor crossing by members willing to be persuaded to cut the incumbent government’s majority in the house. This had little to do with the legitimate change of sides by a member in genuine disagreement with his party. Thereafter followed the second act: misuse of his discretionary power by the constitutional head of the government at the concerned level, be it the president at the centre or the governor of the state. When the government falls at either level because of an adverse vote on the floor of the house or in an election, he is required by the Constitution to invite that person to form the government who in his judgment can command the confidence of the house. But all too often his judgment came under the influence of political pressures either from above or below his rung on the federal ladder, and in either case political manoeuvres emanating from one level came to impinge on the other level, improperly affecting the degree of independence of each from the other, which is the essence of the federal system. In later years both these deformities were cured to some extent by legislative enactments, court judgments, conventions or public disapproval. A notable part in this process was played by Soli Sorabjee through court cases contested by him, and for that reason I was not surprised when he made one of the best recommendations heard in this seminar (and discussed in the section on recommendations a little later). But it is difficult to understand why all political parties have neglected two remedies that have been recommended by some reputed reform commissions that have enquired into the health of our political institutions, the

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federal system being high among them. Both remedies have been discussed in the theme paper and need not be again. But briefly: under the first, a candidate would be declared elected only when, in a knockout round if needed, he has secured at least half the votes plus one. At present he can be elected by a third to a quarter of the voters, and feels no responsibility to the rest. The second reform would require that after an election the choice of the person who should form the new government should not be left to the president or the governor, each guided by his subjective judgment (often wrongly ‘influenced’) as to who has the best chance to form a stable government. The choice should be left to the new house itself. It should elect its own leader by a majority of at least half plus one, and this government should be changed only when a challenger has shown he has the confidence of at least half plus one members.

THE COURT

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A substantial part of the theme of this discussion has been the decline of the role of Parliament and expansion of the role of the Supreme Court in the matter of making amendments to the Constitution. This is an extremely important function in a country that has a written Constitution which is as detailed as India’s is. The Constitution has clearly demarcated these two roles. But in recent years the Court has expanded its role and Parliament has lost much of its own, vindicating the claim by senior advocate Fali Nariman, as quoted in the theme paper, that the Court has succeeded in retaining custody of the Constitution, which was in danger of being taken over by Parliament. Much of this part of the Constitution has also been discussed on the preceding pages and need not be again. But it is recapulated here briefly only to the extent of its close relevance to the dynamics of federalism. Article 368 gives power to Parliament to amend any part of the Constitution, subject only to the requirement that certain Articles (mostly concerned with the federal structure) may be amended only in accordance with the provisos to Article 368, which give an important role to the federating states in amending the Constitution. The Supreme Court has taken the contrary position

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that under the ‘doctrine of basic features’—which is entirely the creation of the Court itself, has no sanction in the Constitution, has no role in it for the constituent states—the Court can strike down any amendment that, in its opinion, affects what it considers a ‘basic feature’, a term that has acquired a limitless ambit because the Court has left it undefined and open-ended. One of the reasons why Parliament has had to suffer this humiliation is that it has been discredited by the way it functions, and the way its functioning is portrayed in the media, which makes it look even uglier than it is. Because of this, Parliament has lost much of that public esteem that is the best defence of the rights of any institution in a democracy. (In an off-the-record conversation, one important MP said to me, ‘I am entirely against the basic features doctrine, but what rights can one give to this Parliament?’) The twin reforms summarized earlier would improve the way we choose our legislators and the way they choose our governments. The legislators would then be more truly representative of those they are supposed to represent, better rooted in the support of at least half the electorate, more answerable to the majority of the total, less dependent on caste and other ‘interest groups’ because none of them constitutes a majority. A government elected in the manner proposed in the reforms would be more accountable to more legislators, less vulnerable to shifts in the allegiance of any fickle legislators of whom even half a dozen can bring the government down in our present system. A hung Lok Sabha or state legislature would no longer torment the polity as it can at present. The elective system would regain some of its lost glory. One victim of the present political uncertainties deserves a special mention in any discussion on Indian federalism: the dislocation of the very promising start India had made with decentralization of the powers of governance right down to the village council or municipalities, taking elected institutions to the doorstep of the voter and thereby making them directly answerable to him. While these institutions have existed in Indian political traditions for a very long time, they have led a hazy, ill-defined existence and have depended a lot upon the whims of local politics. But, renamed formally as panchayati raj institutions (PRIs), they were embedded in the Constitution for the first time through an

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amendment in 1993, which, in the context of the dynamics of federalism in India, can stand out in retrospect as the most important among the nearly 100 constitutional amendments which have been made since 1947. The federal structure as it existed till 1993 had only two layers, the federal centre in Delhi and the governments in the capitals of the constituent states. The powers of these governments varied quite a bit from state to state, but essentially it was a centre–state structure, with nothing above the national capital and nothing below the state capitals with a constitutional status of its own, except in a few states along the borders or in areas that were otherwise unique. The amendment created a new intra-state or sub-state tier of federalism, consisting of elective institutions at two levels, and in some states at three levels, each level endowed with its own constitutionally defined electoral machinery, its elected institution corresponding to a legislature, its own executive that was answerable to the legislature, its own executive and taxation powers, each answerable to the level above, and ultimately to the state capital in ways laid down in the Constitution. Each had some features that would make it even more firmly rooted in democracy than state governments, for example, regarding the time limit within which a new panchayat must be elected if the existing panchayat were dissolved before the expiry of its term for any reason, as it can be under the law just as a state legislature can be. But this third tier of Indian federalism was crippled by the rivalry, explained earlier, between the first and the second stages, and crippled it has remained. State-level parties, including statelevel branches of national-level parties, had generally been cold to the idea of PRIs, hitherto confined to a few states, being expanded into a nationwide network. They were suspicious for two reasons. First, they feared that just as they themselves had become powerful rivals of the national parties in power in the union government, local parties would begin to rival them in the course of time in state capitals. Second, their suspicion increased when they saw that the network was not being pushed so much by sub-state political actors but by the union cabinet; may be, as they might have thought, precisely for clipping the wings of state-level politicians. They could not kill the move, but they did what was the next best thing from their points of view. They denied the proposed constitutional

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amendment the votes it needed for its adoption until it provided that panchayats would be much more subordinated to state governments than the latter were to the union government. Unfortunately for PRIs, the dynamics of federalism were weaker at the time when the third stage was astir than when the second stage was. But the logic of an adult franchise federal democracy is as strong now as it was then, namely, the desire of the less empowered to assert themselves, and their chance to do so by using the same leverage, greater closeness to the electorate, that state-level parties had used against the national parties in an earlier generation. The same claims will be made in the coming times as were made then, that the closer you get to the ground the more real-life politics and governance you will get. That either will get better may be doubted by some. But that is where the future waves of democracy and federalism will come from. In addition to this third tier, which itself is uncommon, the Indian federal polity has many features that, between them, make India a fit subject for a special study of how various aspects of federalism have worked in the world’s most populous democracy and the most populous federation, joined in a very actively political environment. Brief references were made to some of these features early in the theme paper while explaining why India opted for parliamentary federalism, why this is the most difficult form of polity to manage, and how well or not India has managed it. But a discussion on ‘constitutionalism and federalism’ invites a closer look at a few of these features, which have been very active variables in India’s recent political history. A brief discussion on a few of them follows, but first a short selection from many of them which can figure on a checklist: federalism and democracy; democracy and diversity; diversity and territoriality; and any or all of these and socio-political cohesion, which determines how optimally a country can use its nation building resources, or has used them. The mother of parliamentary democracy, Britain, is wholly unitary, and the most powerful democracy, the United States, is conspicuously federal. This would suggest that the one form of government can be just as democratic as the other. But, other things being equal, a federation is inclined to be more democratic by its very nature because it rests on the principle of power-sharing

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between many stakeholders on the basis of consensus or a negotiated agreement. Anyhow, Britain and America do not offer instructive parallels for either the more federal or the more unitary aspects of the Indian polity that calls itself a union but also has the defining characteristic of a federation. At the same time the Indian experience is also not very relevant to either America or Britain because neither of them has what is in fact the governing mechanism of India’s political system, a written and very detailed constitution, and both are free of the burden and the privilege of the complex diversity of Indian society.

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TERRITORIALITY

Being both federal and democratic, India is more deeply affected by two aspects of this diversity than any other country would be, or indeed India itself would be if it were neither federal nor democratic. First, as was briefly mentioned in the theme paper also, most components of this diversity, whether defined by caste, religion, language or culture, have been rooted in this diversity for ages, changing only slowly, if at all. Populations definable as rural or urban, agricultural or industrial, richer or poorer, change these definitions over some generations, as their economic conditions change, with peasants taking to industrial tools and the dividing lines of poverty or habitation shifting ground. But lines that define and divide people by caste, religion, language, etc. have been drawn on the stone of ages. Someone’s interests may shift from one side of the line to the other as his conditions change, or from one line to another depending upon the issue of the day. Voters may divide one way on the issue of caste but another way if caste gives way to language as the question of the day. But their loyalty to their religion or caste, and therefore to the party identified with it, does not fluctuate very much from one election to another if it is measured with the yardstick of votes polled, not seats won, the latter being almost an accidental result of the arithmetic of various issues. The second aspect that affects India deeply is that its diverse linguistic entities, many of which have expressed themselves very emotionally at one time or another, are defined territorially too.

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Tamil-speaking people have lived for ages in one area by the dozens of millions, Kannada-speaking people in another, and so also most others as well. Further, the perceptions of each group about the rights of its territory, and the denial or fulfilment of these rights, are different from the perceptions of other groups; not only different, but sometimes in conflict too. So much so that those who belong to the same caste group, for example, can disagree violently with fellow members of the same caste but a different language group when the issue at stake changes, say, to reorganization of territories on the basis of language. These two aspects, taken separately but all the more so when taken together, would have been major facts of life for India in any case, and for millennia. But they have loomed even larger in the past half-a-dozen decades. They have done so for two reasons. Each reason is important by itself, but the two together are more than twice as important. The first is that India is a democracy. The second that it is a federal democracy. The perceptions of people obviously matter much more in a democracy than they would in a system free of the pressure of such perceptions. The perceptions are also refreshed periodically at the time of elections if these perceptions become electoral issues, which happens more often in federal elections because in them the competition is a lot between territories also and not only between classes of people. Territorial loyalties colour other perceptions in federal elections. A constituent state, organized around these very marks of distinctiveness, reminds its people that they are different from the people of another state because they are organized around a competing territorial mark. At the same time, through the various processes and on the various platforms of a federal democracy, these various states have to compete with each other for slices of the federal cake. In return each of them has to contribute resources for the making of the cake, and each state keeps vigil to ensure that more is not taken from it and less is not given than is due in comparison with other states. And because the agents of this competition are political parties, the ebb and flow of party politics and the politics of centre–state federalism flow in parallel streams, which often flood each other. Like all floods, these also muddy the waters; but like them also leave behind a new layer of more vigorous soil in which new issues

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strike root and flourish. One effect has been some loosening of the hold of factors that had held the political process in their grip ever since the first elections, in 1952. Linguistic loyalties were the first to become weaker because the linguistic reorganization of states was conceded in the mid-1950s, completed in a few years, and a demand conceded became an issue eliminated. The next few years saw the beginnings of two new and mutually reinforcing processes, the weakening of caste and strengthening of the linkages of centre–state federalism. The first process became noticeable in the early 1960s when fissures appeared in the citadel of caste, which had appeared to be impregnable until then. As early as 1965 one was able to say that: The class structure of a village used to be like a multi-storied pillar. Each story corresponded to a caste. A person could not easily shift from one to another; his birth and death occurred on the same floor, with little chance given him for a change of economic or social status . . . [But] a few changes have occurred . . . [A] man’s economic horoscope is less cast at birth. . . . The general effect has been to reduce the pillar to a pyramidal heap in which the brick and mortar of different stories has intermingled, and infiltration from one story to another has become easier. (Aiyar and Srinivasan 1965) India was moving towards a stage at which the prime party of the lowest castes, the BSP, would be supported by the highest castes because both were under pressure from the middle castes, or the highest castes would start drifting away from the so-called Hindu party, the BJP, because it was not ‘Hindu’ enough for them, or the middle castes would not be sure where the middle began or ended. It took 20 years to get to that stage, but when the process got under way it did not spare even the Hindu–Hindi heartland of caste divisions. This lowering of the caste barriers between voters was, of course, good news for Indian society, politics and democracy. As caste became a less compelling factor in defining the political allegiances of a voter, he became more free in exercising his political preferences. A lower-caste voter might still prefer to give his vote to a lower-caste candidate, and most often he did so, but

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he did it more out of his own preference or own perception of his interests than because of an obligation incurred at the time of his birth. To the extent that a caste group could still deliver its votes to the candidates of another caste group, it did so in a process of give-and-take bargaining in the perceived interests, not obligations, of the group. Competing perceptions became an influence on the evolution of the party system. As they churned up society the way it had never been before, more and more groups became more aware of their distinctive selves and interests, and many emerged as political parties in the electoral arena. The idea and practice of democratic choice became more pervasive, and the vote-pulling power of leaders shining away in distant New Delhi gave way to loyalties closer to the ground. Often it was a change for the worse because it made more room for unsavoury characters. But that is a risk a society takes when it opts for freedom of choice, and despite much disappointment with the choices made, termination of the freedom to choose is advocated mainly by those who have no hope— yet—of becoming a majority one day. This is more true of the urban, English-educated middle class than of any other group. An exception might be some religious minority groups that in recent times have become the main voice against ‘majoritarianism’. But by the very nature of their distinction the former cannot be a huge group as yet though their numbers are growing rapidly. There are many reasons why they cannot hope to be a major electoral group in the near future. But the reason they favour most is the least relevant. They believe they are unimportant in elections because they are unpopular with the ‘masses’, the latter being uneducated and steeped in orthodoxy while they themselves are educated and modern, and for that reason they are seen by the others as ‘Westernized’ and ‘alien’, which makes them unimportant as fodder for the ballot box. The fact is that Jawaharlal Nehru, the most popular leader India has had barring Gandhi, had a more Western image and mien than any successor, and Gandhi, whose ‘Indian’ image became an icon, was more educated than most. But both of them had also identified themselves, and convincingly, with the cause of the ‘masses’. The real reasons why those who are seen as more Westernized are also more alienated from our mass-based democracy are two.

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First, they do not think they will ever get mass support and can never compete democratically with those who get it. Therefore, they keep their distance from the ‘crowd’ and the latter returns the compliment. Second, they have developed other leverages for every kind of privilege that success in mass-based politics can bring them. Therefore, they find it unnecessary to trudge their way to the pooling booth. But whatever the cause, the effect is that their distance from the people has deprived them of their relevance to electoral democracy, and has deprived the latter of potential leaders. Most of all, it has deprived the country of the contribution they could have made to the growth of constitutionalism, which could have been the highest per head compared with the contribution of any other group.

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COALITION POLITICS

More relevant to the present discussion, however, is the effect this increased activation of our diversities in the form of political parties has had on the evolution of the federal system and the effect it can be expected to have in the foreseeable future. To go back to the beginning, once democracy became the automatic choice of the Constituent Assembly, federalism also gained support. The argument that India’s diversity required federalism did run into the hesitation that the more you recognized differences the more you might encourage them, and they might grow further as federalism gave them the platform of more and more parties. But the counter-argument proved stronger, that federalism was more democratic because it required and was built upon closer participation by the diversities. It also proved more integrative, because similar groups in different parts of this huge country could speak in the same voice at the centre and in the states through the channels of centre–state federalism. But the more numerous and assertive the diverse entities in the electorate are, the more the electorate gets divided between them, and the lesser the chances of any single party gaining a majority on its own to form the government. The Congress used to form the government in election after election in the first two decades of independence. But in fact this was an optical illusion up to a

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point. The Congress in those days used to be a conglomerate of many parties hidden in its folds. That is why it was called a ‘Congress of parties’ by some analysts, and that is also why many separate parties that came into being in subsequent years were in fact collections of Congress people who had changed their names, garb and slogans. But even so, when these incipient parties grew their wings they also developed their own agendas and demands, and their own constituencies to press them upon others. This change made a difference to federalism in many ways. Parties with narrow support bases of their own sought the coalitional support of other parties to make up the numbers required for being heard in legislatures. The more ambitious among them also began to extend their state level bases into neighbouring states in order to show the minimum support they needed in the minimum number of states to qualify as regional parties at least, and hopefully some day as national parties. This gave many parties a role in the formulation and implementation of government policies at the level of states. It also decentralized power and federalized the polity because a party needing the support of other parties at one level had to conceded some power to them at another level. This created a dense cross-country web of inter-party obligations and interdependence. It also brought governments and people into closer contact because more and more parties, most so the newer ones, needed the reiterated backing of the voter in order to refresh their mandates to bargain with other parties in the politics of coalitions. Between them these consequences have made the Indian polity as a whole much more interactive between all parts of the country and at all levels of society. In effect, it has integrated the polity more even if it has also increased the traffic of competing demands and unresolved disputes. Many parties that came up between the mid-1960s and the late 1980s—and that means most except the BJP—might have been formed by migrants from the Congress and therefore might have had a shared parentage. But even so they competed with each other as separate parties, and split votes and seats between them in every election, and increasingly as the years went by. The result came to be that from the late 1970s onwards multi-party coalitions became the rule at the federal centre and in the constituent states. Governments could formulate policies and take administrative

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decisions about them only after intricate bargaining and compromises. The inevitable result was second-best policies, inefficient decisions and slower implementation of even such decisions as could be taken at all. Very often parties that formed the coalition at the federal centre were also partners in coalitions in some or many state governments. Thus, at both levels the balance between parties and the need for constant interaction between partners in a coalition gave new parties a leverage both in matters of policy and in matters affecting the survival of the government. It used to be said that while the Constitution had provided for a government in New Delhi that was federal in all but name, the dominance of a single party at both levels had converted it into a unitary government in all but name. But that changed as the presence of the Congress on the political scene became less preponderant. By the letter of the Constitution, it was the case already that the powers of the constituent states were not gifts given to them by the central government in its discretion, but were theirs by right. But the Congress ‘high command’ as it used to be called—and was so in truth—had made them seem to be dependent on central patronage. However, the new developments in the party system have made the federal letter of the Constitution a political reality. This is one of the reasons why going by the rules of the Constitution has become all the more important than it used to be, though doing so in fact has yet to become common. A coalition government can only work by consensus between the various parties that constitute the government. But as it has developed, the party system has also made it necessary to have not only horizontal coalitions, that is, only at the federal level or at the level of the constituent state concerned, but also vertical coalitions, that is, partnerships between the partners at the federal level and those in governments at the constituents level. Disagreements between coalition partners at either level can trigger disagreements at the other level and bring down government there as well. This slows down governance at all levels because coalition governments can only move slowly, and most of the time they also move indecisively. But even as governments have become less effective in converting their perceptions into policies and policies into action, the facts of coalitional political life have made it

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necessary for them to be more aware of the sensitivities and needs of the people at other levels. Horizontal and vertical coalitions have given parties the means to do so because the connections between them lead to all levels of society and all parts of the country, even if the path is littered with quarrels between parties. The two opposing processes, the slowing down and the coalescence, have had opposite effects upon the level of social cohesion in the Indian polity. Tensions have grown because the slowing down has delayed resolution of divisive problems. But the opportunity for inner circle consultations have averted breakdowns, whether within or between governments. Therefore, it is difficult to take a definitive view of the performance of the federal system compared with how a unitary system might have performed. But halfway through the [55th year] of the Constitution the following would seem to be a fair report card. 1. For the time being, but a ‘time’ that has gone on for more than 50 years, it can be said that federalism made India possible, giving a positive answer to the question that was much in the air till the early 1950s, the question whether the first Partition, which created Pakistan, would be followed by a few hundred more. It is a proven fact that the flexibilities of the federal system helped, and it remains in the realm of speculation whether a unitary system would have done it better. Without it some parts of India would have been much better off than they are today, but some, equally, would have been much worse off, and the ‘India’ one could have talked of would have been without many areas and peoples that are in it today. 2. Fear or fact of coercive pressure by New Delhi was not much in the picture during the first few years of independence, and that is when nearly all the 500 or so Indian states joined the Indian republic. It did become a factor first in the early and then in the late 1950s in Hyderabad and Goa respectively. But there also the people of the two states had no doubt in their minds. (The state of Jammu and Kashmir is in a class of its own.) 3. Whether any of the states that joined the republic were better off for doing so or would have been better off by

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5.

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exercising the option to become independent cannot be proved either way. What is above doubt is that the people who have been hurt most are those who did not or were not allowed to take a decision for many years. Some among them are still unwilling or unable to take a decision, and are still paying the price for that. Whether India should be a democracy was a question that had been answered before it was asked. Thirty years of struggle for independence through a mass movement had settled the issue in favour of democracy. The only question left was whether it should be of the presidential or parliamentary form. But the choice went so clearly in favour of democracy that it also tilted the balance in favour of the parliamentary system, in which the accountability of the executive to elected representatives is a clear fact of daily life, unencumbered by theories of checks and balances. Once the choice went in favour of maximum democracy, it also went in favour of the federal form of it because that makes the executive accountable to legislatures not only in the distant capital of the country, but also in the capital in every constituent state. A combination of local diversity and uniform universal adult franchise democracy made the republic of India, despite the Partition, a bigger and more populous unified political system than it had ever been before, the most populous and one of the most extensive federations. These and other benefits of federalism will grow further when sub-state federalism resumes its interrupted march. But the stability as well as the success of the federalism we know rests upon how faithful the polity remains to the Constitution. However, on that depend many other things as well, some much bigger than the future of federalism. The federal system would have worked more smoothly in the past, and can do so in future, if the authorities at both levels, the federal and the constituents’ levels, had made, or would in future make, more diligent use of mechanisms of centre–state and inter-state coordination that political leaders had put in place in the more far-sighted stage of their lives.

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9. Parliament would also regain some of its lost prestige if it became more accountable to the electorate by replacing the first-past-the-post system with election by at least half plus of the votes cast. 10. Governments would gain more stability and respect if they too were formed by the majority of the legislators, and held office at the pleasure of the house, and did not have to wait upon the pleasure of Rashtrapati Bhavan or Raj Bhavans.

REFERENCE Aiyar, S.P. and R. Srinivasan (eds). 1965. Studies in Indian Democracy. Bombay and New York: Allied Publishers.

LOOKING AHEAD: SOME RECOMMENDATIONS

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rom the start of the discussion on the first day to the end of it on the second day, many participants either made suggestions of their own or supported those made by others for resolving the main problem that preoccupied the seminar, namely, the conflict between Article 368 of the Constitution and the ‘doctrine of basic features’ which the Supreme Court has derived from its own judgment in the Keshavananda case. In suggesting how the conflict may be resolved, these participants also signified their dissent from those who had maintained that there was no conflict. Many of them went on to make very useful suggestions on how the conflict may be resolved, and some of the most practical suggestions came from participants who had been strong supporters of the ‘doctrine’ at earlier stages of the seminar. This was a satisfying confirmation of the value of such discussions. Some participants made their recommendations directly, others did so by recalling what they had said on earlier occasions, a few left room for inferring theirs from their praise or criticism of what they said was contained in or missing from the Indian or other constitutions. But all recommendations are being presented here, in the order in which they were put before the seminar. (The Convener’s paper, circulated in advance, was orally presented on the second day.) The Convener’s comments on some of the recommendations have been added in parenthesis where needed, and they will be rounded off at the end. Each organ of State—the legislature, the executive and the judiciary—is the creation of the Constitution and derives its powers from the Constitution. . . . Courts have the mandate only to interpret the law and not to enter into a discussion as to what the law should be, nor to lay down general norms of behaviour for the government and the people, to be considered binding on all as the law of the land. . . .

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The basic foundation of our Constitution is the accountability of the state to the people, who are the real masters. (Speaker of the Lok Sabha Somnath Chatterjee) It may be true that our legislatures have lost much of their sheen and people no longer extend the traditional esteem to them. All the same the nation cannot let the judiciary encroach on the areas of Parliament. (I.K. Gujral, former Prime Minister) The available options are a national debate on the issue and possibly a referendum on the scope and procedure of amendment of the so-called basic features, and/or a review of the whole situation by the full court of 26 judges of the Supreme Court after issuing notices to all stake holders. (N.R. Madhava Menon) This theory of basic structure . . . is without precedent in constitutional law. Constituent Assembly debates give no indication of such a theory. . . . The situation calls for serious introspection and decisive action to save the institutions . . . and make the Constitution work better. . . . Radical electoral reforms [are needed] to revitalize Parliament and state legislatures so as to make parliamentary democracy a success, and judicial and administrative reforms [are needed] to ensure that the institutions function strictly within the constitutional bounds, with greater transparency, accountability and efficacy. (P.P. Rao) [‘Serious introspection’ is the recommendation which was most frequently made in various words—Convener.] The majority in the Sajjan Singh case also suggested to Parliament to include the provisions of Part III [the Bill of Rights] in the proviso to Article 368. Then amendments to any of the Fundamental Rights could be effectuated more democratically, both houses of Parliament passing the amending Act with the requisite special majority and at least one-half of the state legislatures ratifying such amendments. The suggestion was ignored. . . . When the Janata government endeavoured to recast Article 368 [the amending clause] and introduced provisions for a referendum for effecting changes in the basic features of the Constitution, the attempt failed. The 45th Amendment Bill could not secure the

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requisite two-thirds majority in the Rajya Sabha owing to the opposition of the Congress (I)! (Fali Nariman) [If these suggestions, recalled at the seminar by Nariman from earlier occasions, were heeded, we might get closer to the welcome idea that any amendment of Fundamental Rights at least, if not of all amendments, is not only subjected to the test of judicial review in a federal context, but also to the test of public support, or even submitted to a referendum, perhaps with an added requirement of a special majority—Convener.] However, the power of court to have the final say. . . ought not to mean that the court may do so whenever it thinks it fit to do so. The court must forever be conscious of the fact that it is an unelected branch of the government; that the wishes of the people as expressed by legislation ought to be treated with the greatest respect. . . . It is a matter of concern that the courts have not always exercised their power keeping in mind this limitation. . . . The court assumes powers that even the most liberal judges of the US never contemplated. . . . Only a public debate, such as the present one, would . . . ultimately resolve the problem. (S.K. Dholakia) [This is as good a case as can be made: (a) for recognizing that a problem exists; (b) that even if the cause is good the consequences might not always be so unless we are careful; and (c) only discussions such as at the seminar can ultimately resolve the problem—Convener.] Even if we can tell with a degree of certainty what the majority preference is at any given point of time, that may not necessarily be the institutional preference of the society. By ‘institutional preference’ I mean the preference that in the instant case is consistent with a series of preferences of society reflected in institutional decisions over a period of time. (Salman Khurshid) [It would be instructive to try to work out how to put the suggestion into operation. . . . What kind of ‘decisions’ by which ‘institutions’ over which ‘period of time’ would be measured against the ‘majority preference’ (which, in any case, cannot be measured with certainty according to Khurshid); and at the end of the day would we be wiser about what to do when more people prefer one ‘preference of society’ than prefer another? Would we only compare numbers with numbers or bring in other criteria as well, and

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if we did the latter, would we, by giving more weight to some numbers than to others, be running deeper into what we are trying to run away from? Or would it mean that MPs and MLAs long dead and gone would have a veto on the decisions of their successors without any such authority in the Constitution?—Convener.] Since the Keshavananda decision itself recognizes ‘judicial review’ to be a basic tenet of the Constitution, the judges comprising the full Bench could perhaps have attempted to seek a consensus on some of the other tenets (or core values enshrined in the Constitution) which some other judges have held to be basic. . . . However, once again, instead of reasserting that the power of amendment was limited by the core values and principles enshrined in the Constitution, such as democracy, free and fair elections, separation of powers, judicial review, secularism, the federal nature of the Constitution, etc., the Court took the opportunity to further support the vague and open-ended concept of the basic features doctrine. (R.K.P. Shankardass) [This issue, of course, would have to be high on the agenda of the further discussion and ‘introspection’ recommended by many participants. But the discussion can proceed only on the assumption that the Constitution has not given a carte blanche to the Court in the name of the ‘doctrine’—Convener.] I must at the outset concede . . . that the basic structure doctrine is not well-defined. It does not say that these provisions constitute the basic structure of the Constitution. What is its scope? What is its periphery? That is not there. . . . Therefore, there is a possibility of its expansion into different fields. . . . [It] is a loose doctrine. It can be stretched. Whether you want to leave it to the wisdom of the court or you want to define it is another manner. But I think that there is a need to say what are the areas which should be left to Parliament’s wisdom to amend them, and what areas you would like to keep intact because we the people gave those areas unto ourselves. (Justice A.M. Ahmadi) Justice Ahmadi also made the following additional points: About the appointment of judges: I had dissented in the judgement which changed ‘consultation’ to ‘concurrence’, and some of those who supported it then are now ‘thinking the other way round’. . . . The concerned Article was very

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well drafted and I said in my dissenting judgement that you are re-writing the Constitution. But what was Parliament doing?. . . . The power of Parliament to correct situations was not exercised. About PILs: PILs should be filed only in matters which are judicially manageable. . . . They have ceased to be in the ‘public interest’. [While stressing the need to define the ‘doctrine’, and while leaving it open whether it should be defined by the Court or by Parliament, Justice Ahmadi has raised the welcome possibility that if Parliament defined it, it would probably define the ‘doctrine’ in the Constitution itself instead of leaving it to be inferred courtesy the Court. Changing ‘concurrence’ back to ‘consultation’ would be a long overdue correction of a wrong decision which should never have been taken, but, quite amazingly, was. Justice Ahmadi’s surprise over Parliament’s failure to use its ‘power to correct situations’ should be a wake-up call to Parliament too, while delay by the Court would reflect adversely on the Court as well. Similar should be the effect of his advice regarding the runaway phenomenon of PILs—Convener.] Arguably, the court has made it clearer than before that there have to be ‘substantial constitutional’ reasons for dismissing a state government. Even Laloo Prasad Yadav’s misrule in Bihar could not quite pass that test. . . . It seems that the character of judicial review could determine the nature and scope of federalism rather than being determined by it. . . . Most judgements are a delicate and political balancing of competing values and political aspirations; they seek to provide a workable modus vivendi rather than articulate high values. (Pratap Bhanu Mehta) [The Court’s interventions against the (mis)use of Article 356 are a good reason for praising it for filling out its duties through legitimate interpretation of the Constitution without interpolating anything into it. . . . The imperative requirements of federalism are a strong justification for judicial review. . . . Mehta’s last observation suggests, probably rightly, that by moving into areas like providing workable solutions, the Court has weakened itself in its

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true domain, that is, to articulate high judicial principles and thereby to make constitutionalism stronger—Convener.] If, suppose, some social legislation creates problems—and I don’t need to spell it out; Justice Ahmadi knows what I am talking about—then who is likely to understand clearly what kind of forces have been released on the ground? Not the Supreme Court; but only the Members of Parliament, the members of the legislature of the area. . . . I fully agree that we need to protect the essential features. But the protection lies in building ramparts in the minds of the people. . . . And that is the ultimate sanction for all political parties, for all democratic institutions. . . . You have got to accept the basic supremacy of the Constitution and the constitutional scheme which it spells out. If you do not do that then you can get misled into by-lanes which will not take you to an objective. . . . [O]nce you accept that, then various approaches are possible. Pran has suggested [that]. . . ‘you define the basic features and then include them in the Constitution’. Let it be an open process. Let it be accepted by Parliament also. That changes the whole debate and it achieves the objectives. (K.C. Pant) [Starting from different points on the political compass, Justice Ahmadi and K.C. Pant have come to the same approach: define features and specify them in the Constitution by an ‘open process’—Convener.] A constitution determines the basic structure of the political system. . . . Each organ has to discharge its duties only within the domain assigned to it. Ultimately, no institution, however supreme, is above the people. . . . None of the three—the legislature, the executive, the judiciary—can arrogate to itself a position superior to the collective sovereign will of the people. . . . We need to mark the words, ‘Constitution had conferred a limited amending power’. Where does it say in the Constitution that the amending power is a limited one? (Subhash Kashyap) [These are the criteria that must help us to decide whether a constitution should be perpetually unamendable or always amendable, and if the latter then amendable by whom?—Convener.] [The Indian Constitution is] in contrast to European constitutions, which confer power [of amendment] on specially created constitutional courts. (Ajit Mozoomdar)

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[Mozoomdar explained separately that he was citing the European case as a recommendation. This change would be very welcome as such because it would ensure that the Constitution is amended only by a body to which constituent power has been given by the Constitution, and not by a body which on the one hand denies Parliament the constituent power given to it by the Constitution, and on the other hand confers constituent power upon itself through its own pronouncements—Convener.] Of course, there is a real weakness in our ‘doctrine’ because, after all, judges may try to increase the list of essential features. Then how is our Parliament to know where it stands?. . . [But] it is thanks to the basic structure doctrine that we will not have a completely majoritarian rule. . . . Of course, it would be ideal if our Constitution also says, as certain constitutions do, that certain specified provisions are unamendable. . . . But to my mind, though the ideal situation would be to have them specifically enumerated, I am of the view that till that is done we should not dilute the basic structure doctrine. (Soli Sorabjee) [There are several virtues in these quotes that have been excerpted from a single paragraph of Sorabjee’s presentation of his views, which for the rest had been a trenchant defence of the ‘doctrine’. The paragraph supports a specific criticism of the doctrine which was first voiced in the Keshavananda hearing itself (by the defendant, the government of the day) and was repeated at the seminar by a former chief justice of Orissa, Justice Mohta. Both of them had said that if the doctrine remained in its present form, which Shankardass had described as ‘open-ended:’ and Justice Ahmadi as ‘loose’, then Parliament would not know ‘where it stands’. It would remain ‘paralysed’, to quote another participant, P.P. Rao. Sorabjee recognized that as it stood the doctrine may be used by ‘judges’ who ‘may after all try to increase the list of essential features. . . . Then how is Parliament to know where it stands?’ he asked. He also added further weight to the several provisions already available in the Constitution, which in normal circumstances are quite adequate for barring ‘discrimination’ against any community or individuals. But most of all he brought the parliamentary and democratic aspects of Article 368 back into play in the amending process because, as he explained, the

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unamendability of ‘specified provisions’ would have to be written into the Constitution. And his advice for the interim period cannot be faulted. At most it may be supplemented. The advice is: ‘do not temper with the doctrine until the Constitution says what cannot be amended’. Hurry should be avoided in constitutional matters. But in the meantime the Court should also avoid using the doctrine as a labour-saving device. If it has to disallow an amendment it should first show it to be inconsistent with or violative of the Constitution. Only in the event of its inability to show that to be the case, and only in a situation of extreme necessity, should it reach out for the doctrine, and not merely because it is a more handy tool, and should do it only in the full realization that each time it bypasses the Constitution it weakens India’s federal structure and thereby also weakens India’s unity—Convener.] But as the seminar ended, it was still far from getting over the biggest hurdle before it: how to set at rest the apprehensions of the ‘minorities’ about the ‘tide of majoritarianism’, to quote Nariman, and yet not deny the fruits of democracy to those who have the legitimate support of a larger number. Nariman has suggested two ways of getting over that hurdle. First, an amendment that affects Fundamental Rights should be adopted only if passed by ‘both houses of Parliament passing the amending act with the requisite special majority, and at least one-half of the state legislatures ratifying such amendments.’ Second, an amendment affecting any basic feature should be subjected to a referendum. The first proposal would ensure that an amendment is adopted only with the broad approval of the country and not only by a vote in Parliament. The second would require the direct approval of the electorate and not only of those already elected, who may well have been elected on a different set of issues. But each remedy rests on both the ‘yes’ and ‘no’ sides of the issue of accepting the democratic logic of numbers. On the other hand the prevailing reality, to which Nariman has also given the nod of recognition if not of approval, is that the logic has become a casualty at the hands of the apprehensions of the ‘smaller numbers’ about how the ‘bigger numbers’ become ‘bigger’, and the rising resentment of the ‘bigger numbers’ about what they may come to see as the dictatorship of the ‘smaller number’.

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Of course, there are approaches that can bypass the hurdle. One is arithmetical, the other philosophic. The arithmetical rests on solid evidence, which shows that on almost no issue of ‘communal’ importance, stretching from reservations to the Babri Masjid, to ‘saffronization’, including all that these words can legitimately encompass, is there an overwhelming ‘majority’/‘minority’ divide between communities. Everything that the ‘majority’ of one community supports in any of these cases is opposed by a sufficient number of people within that community to reduce it to a ‘minority’ in the overall count on that issue, because on each issue there is room for a coalition of ‘minorities’ that can challenge the majority on that issue. The philosophic bypass is in two parts. The first is also supported by evidence. It shows that the more ‘a community’ is unjustly berated by an opposing community, the more inclined it becomes to overcome its internal divisions and to present a united front to the other side. This can happen whether it is a minority which is, or is seen to be, posing a challenge to a majority or the other way round. It can happen faster if a ‘majority’ sees itself facing what I have called ‘a coalition of minorities’, and can happen very fast if the ‘coalition’ opposes the political canons that the country has accepted, in other words, if the coalition opposes a democratically formulated constitution, and most so if the coalition opposes a constitution that has kept the door open for any change so long as it is made in the democratic way provided in the Constitution itself. The second part has no evidence to support it because, fortunately, India has not had to live that experience yet and, therefore, can offer no directly experienced evidence on either side. But common sense suggests that despite all the disadvantage it might face in democracy’s game of numbers, a ‘minority’ is better off in a democracy, where it has the chance to join up with like-minded people, than it would be in a non-democratic regime, which would, of necessity, keep on the right side of the majority. That makes the chance of a ‘dictatorship of the minority’, or any such ambition or illusion, impossible in any democratic country, more so in a country of the size and complexity of India. ‘Dictatorship of the minority’, a prospect sometimes paraded by the majority to demonize the minority and sometimes by a minority to terrorize

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the majority, is as impossible in India as ‘dictatorship of the proletariat’ became in the land of its birth. But if this lesson of common sense is to become the commonly accepted norm, it must be equally commonly accepted that when changing times require changes in the Constitution, or if reversal of the changes is needed because the need for them has expired, then the changes must be made and unmade only in keeping with the one principle that underlines all principles in a democratic system that has a constitution, that the constitution is a product of the widest available consensus among the people and thus is a truer embodiment of the sovereign will of the people than any available alternative. So long as changes are made and unmade in keeping with this principle, they will continue to merit, and so far have rightly received, wider acceptance among the people than any doctrine or device born of another parentage. In theory the Constitution clearly enjoys such a status. But the practice lags behind. Hence, the readiness with which one arm of the state reaches into the domain of another arm that it perceives to be falling down on its job. The perception is often correct, and sometimes it produces ends that may justify the means. Sorabjee has given some persuasive examples. But they also set bad precedents for others to follow whose ends may be worse than their means. If institutions of state disregard the constitutional boundaries of each other’s responsibilities the result may well be the ‘utter chaos’ against which Ambedkar warned us, as quoted at the start of the theme paper. Safety lies only in building what K.C. Pant called ‘ramparts in the mind’ of the people, and they are best built by the very kinds of people who showed at the seminar how minds change in the face of persuasive reasoning by men of public standing. The most potent among them are men of law who have earned public acclaim during their years on the bench or at the bar. The fame of their professional actions can give them greater powers of persuasion than is available to those in humbler occupations. In fact, great judgments are one of the healthiest influences on public opinion.

ABOUT

P

THE

EDITOR

ran Chopra ([email protected]) was born in Lahore in 1921, and began his lifelong career in journalism there in 1941, in the Civil and Military Gazette. Since then he has been War Correspondent for All-India Radio (AIR) in China and Vietnam (mid-1940s); Guest Commentator with the United Nations (1950); Chief News Editor, AIR (1950s); Parliamentary Commentator for AIR and the Statesman group of newspapers (mid-1950s to early 1960s); Resident Editor of The Statesman, Delhi (early 1960s); Deputy and then Chief Editor of the Statesman group (till the late 1960s); Editorial Director of the Press Foundation of Asia (1970s); and Visiting Professor at the Centre for Policy Research, New Delhi (1980s and early 1990s). Since then he has been a freelance journalist and writer. He has written, edited or contributed to over a dozen books, including The Indian Parliament: A Comparative Perspective (2003); Political Parties and Party Systems (Sage 2003); Scene Changes in Kashmir, India and Pakistan (2003); India: The Way Ahead (1998); India, Pakistan and the Kashmir Tangle (1994); Future of South Asia (1986); Contemporary Pakistan: New Aims & Images (1983); Zulfikar Ali Bhutto’s: If I Am Assassinated . . . (1979); India’s Second Liberation (1973); Before and After the Indo-Soviet Treaty (1971); The Challenge of Bangla Desh: A Special Debate (1971); Uncertain India: A Political Profile of Two Decades of Freedom (1968); Studies in Indian Democracy (1965); and On an Indian Border (1964).

LIST

OF

CONTRIBUTORS

AND

PARTICIPANTS

*Justice A.M. Ahmadi, former Chief Justice of India *T.R. Andhyarujina, Senior Advocate *Pran Chopra (Convener), former Chief Editor, The Statesman, New Delhi *P.K. Dave, former Lieutenant Governor of Delhi *Ashok Desai, Senior Advocate and former Attorney-General of India *S.K. Dholakia, Senior Advocate *H.K. Dua, Editor, The Tribune, Chandigarh *Rohan Edrisinhe, Sri Lankan scholar *Chinmoy Gharekhan, formerly India’s Permanent Representative at the United Nations *M.S. Gill, former Chief Election Commissioner of India *Ramaswamy R. Iyer, Research Professor, Centre for Policy Research, New Delhi *Subhash Kashyap, former Secretary-General of the Lok Sabha *Salman Khurshid, Senior Advocate *Ashwini Kumar, Senior Advocate *George Mathew, Director, Institute of Social Sciences, New Delhi *Ajay K. Mehra, Professor, Centre for Public Affairs, New Delhi *Pratap Bhanu Mehta, President, Centre for Policy Research, New Delhi *N.R. Madhava Menon, Director, National Judicial Academy, Bhopal *A.M. Mohta, former Chief Justice, High Court of Orissa *Ajit Mozoomdar, former Secretary, Government of India *Fali Nariman, Senior Advocate

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*K.C. Pant, former Vice-Chairman, Planning Commission, and Cabinet Minister *Raju Ramachandran, Senior Advocate *P.P. Rao, Senior Advocate *Moosa Raza, former Secretary, Government of India *Rajinder Sachar, former Chief Justice, High Court of Delhi *Purno Sangma, former Speaker, Lok Sabha *Malik Imtiaz Sarwar, Malaysian scholar *R.K.P. Shankardass, Senior Advocate *K.C. Sivaramakrishnan, Visiting Professor, Centre for Policy Research, New Delhi *Soli Sorabjee, Senior Advocate and former Attorney-General of India

* Participants who also contributed written or oral papers.