Constitutional dynamics

Print edition : November 15, 2013
The transformation of the Indian Constitution over the years and its flexibility in adapting to changing needs constitute an area of great interest for scholars.

THE Indian Constitution is now 63 years old. Yet, every new book on the Constitution, even if it is a revised edition of a work published several years ago, has the potential to offer a fresh perspective and a platform for serious reflection for the reader. A living Constitution is expected to adapt to the changing times and contexts, even if it means giving up some of the old doctrines that shaped its original identity. Therefore, the commentaries of scholars of Constitutions are invaluable aids to understand the trajectory of Constitutions and their contributions to the quality of democracies.

In a sense, each of the books under review makes a significant addition to the scholarly literature on Constitutions in general and the Indian Constitution in particular. As the Indian Constitution has opted for a judicious mix of features borrowed from the Constitutions of several other countries, it not only has a lot to offer in terms of its experience to other constitutional jurisdictions but has enough lessons to learn from them.

V.N. Shukla’s Constitution of India—its first edition was published within a few months of the Constitution’s adoption in 1950—is fascinating. Its publishers have now brought out its 12th edition, revised by Prof. Mahendra Pal Singh. The author was responsible for only five editions of his work; he passed away at the age of 55 in 1972. Yet, successive editions of his book have been a source of learning to generations of law students in India.

The introduction to the latest edition is different in content from earlier ones and seeks to satiate the intellectual appetite of Indian students. Prof. Singh says that the initial draft of this section was contributed by Moiz Tundawala, a researcher at National Law University, Delhi, and Singh himself made only minor changes to it.

The introduction makes a few interesting points. Firstly, irrespective of the Constitution being a single document and its text having undergone changes, the States and the government as well as the relation between them keep changing all the time. A good example is the rise of regional parties and coalition politics, which has impacted Centre-State relations, with the Central government coming to depend more and more on the support of regional parties from the States. This has happened despite the original text of the Constitution and subsequent amendments in favour of the Centre. Similar changes that take place in all societies, irrespective of changes in the text of the Constitution, also become part of the Constitution of that society or country. As frequent changes in the text are discouraged to maintain the sanctity of the Constitution, there is a need for a mechanism to keep the Constitution in line with changes in society, such as the impact of globalisation or other international or external developments. Judicial interpretation of the Constitution offers one such mechanism. Public law, understood as a set of norms legally enforceable, is another. As these norms are not strictly law-bound, they lead to the legalisation of politics through the Constitution and increased politicisation of the law.



Ongoing debate

There has been an endless debate whether it is the Constitution or Parliament that is supreme in India. India’s first Prime Minister, Jawaharlal Nehru, is credited with the view that Parliament is supreme; yet scholarly literature on the subject, including this book, reveals that his understanding might have been flawed. A corollary to this debate is whether the Constitution is a mere function of its times or whether it could attempt to shape the way the other variables like history, politics, society, its economy, culture and much more that cannot be reduced to bare legal stipulations play out. This book subscribes to the view that both the Constitution on the one hand and politics, history, society, economy, culture and the like on the other end up sharing a relationship of mutual engagement in the long run. More importantly, the struggle to make the Constitution something of which the vast multitude can claim ownership is a continuing struggle—one which has to be waged often on extra-constitutional, political fronts. The book succinctly puts it: “A strictly legal approach cannot fathom all this; those who love their Constitution and would wish it to survive must, therefore, remember that it is part of the public law which is founded on political prudence of those who have to work with it.”

The second book, Constitutional Law by Mamta Rao, an academic at Rani Durgavati University, Jabalpur, begins with what Granville Austin had observed about the making of India’s Constitution: “It was the greatest political venture since 1787 in Philadelphia” (where the American Constitutional Convention took place). Another equally quotable quote also finds a place in her preface: “A Constitution is framed for ages to come, but its course cannot always be tranquil” (attributed to John Marshall, former Chief Justice of the United States Supreme Court). The comment is juxtaposed with what B.R. Ambedkar, Chairman of the Drafting Committee of the Constituent Assembly, observed about the Indian Constitution’s resilience: “It is workable, it is flexible and it is strong enough to hold the country together both in peacetime and in war time. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that man is vile.”



Living document

Drawing from several recent judgments of the Supreme Court, the author articulates her own understanding of the nature of the Indian Constitution: It is a living document and its provisions have to be construed according to the march of time and the development of law. The Constitution is supreme and all organs of the state derive power, authority and jurisdiction from it; yet, it is living, organic and dynamic and must grow with the nation. Therefore, its provisions should be construed broadly and liberally. A unique feature of this book is that key cases, doctrines and principles are highlighted on the margins, helping the reader in a hurry to grasp the essence of the discussion easily.

In the author’s view, judicial review is the safety valve or the “balance wheel” of the Constitution. The judiciary in India has the power to declare a law unconstitutional if it is beyond the competence of the legislature or if it is in contravention of the fundamental rights guaranteed by the Constitution or of any other mandatory provision of the Constitution. However, the judiciary does not possess the power of judicial review of the wisdom of legislative policy. The author believes that judicial review in India, after the incorporation of the basic structure doctrine, has gone far beyond what was envisaged under Article 14 of the U.S. Constitution, which bars any State from making or enforcing any law which shall abridge the privileges or immunities of citizens and deprive any person of life, liberty or property without due process of law or deny any person the equal protection of the law.

The author says that the seeds of the concept of public interest litigation (PIL) were initially sown by Justice V.R. Krishna Iyer in 1976 (without using that terminology) in Mumbai Kamgar Sabha vs Abdulbhai Faizullabhai, wherein he held that the public interest is promoted by a spacious construction of locus standi, and where foul play is absent and fairness is not faulted, latitude is a grace of procedural justice. It was only in a later case ( S.P. Gupta vs Union of India, 1981) that Justice P.N. Bhagwati formally established the concept of PIL, holding that any member of the public having sufficient interest can approach the court for enforcing constitutional or legal rights of other persons and for the redress of common grievances.

By relaxing the rule of locus standi, the judiciary enabled itself to deal with cases ranging from environmental protection to the rights of prisoners. This has given rise to the view that judges are supposed to only declare the law and not make it as that would be encroaching upon the territory of the legislature.

In the preface to the third book under review, Judicial Activism in India: A Festschrift in honour of Justice V.R. Krishna Iyer, Justice Deepak Verma of the Supreme Court says: “There is no such strict wall of separation of powers in our country (between the legislature and the judiciary), and this appears to be the intention of the Constitution-makers too. Had it not been for the upbeat approach of the judiciary, Article 19 of the Constitution would have been deprived of Freedom of Press, Article 368 of the novel Basic Structure doctrine and, needless to mention, Article 21 of right to privacy, speedy trial, clean environment, only to name a few.” According to him, it was Justice Krishna Iyer who started the practice of reading new rights into existing provisions of the Constitution, by bringing within its ambit rights that the drafters themselves would not have visualised.

The book is a collection of essays written by judges, lawyers and academics in honour of Justice Krishna Iyer. The editor, Lokendra Malik, offers a simple definition of judicial activism, saying it refers to the courts’ activity to compel the inactive branches of the state to discharge their functions.

It is only through examples that we learn when judicial activism is justified and when it is not. In the Jharkhand Assembly case (2005), the Supreme Court issued certain directions to the Speaker of the Jharkhand Legislative Assembly in March 2005 to conduct the Assembly’s proceedings in order to test the confidence of the house in the government and to keep a video recording of the proceedings. According to Malik, this is a clear violation of Article 212 of the Constitution, which prohibits any judicial intervention in the internal business of a State legislature. In such matters, Malik says, judges should exercise restraint and leave those issues to the judgment of the branch concerned. The 26 chapters in this book deal with a variety of topics such as environmental justice, good governance, labour activism, judicial accountability, and so on.

The fourth book under review, Justice, Judocracy and Democracy in India, written by Sudhanshu Ranjan, a senior television journalist, carries a foreword by Justice Krishna Iyer, who agrees with the author that for the Indian poor to survive, a transformation with dynamic changes is a must.

One such transformation Krishna Iyer has in mind is revealed in the foreword: “Parliament has the constituent power to undo contra-constitutional rulings, as Indira Gandhi did in the nationalisation of banks and the abolition of privy purses and F.D. Roosevelt did when he threatened to pack the Supreme Court in the USA.... The ‘tryst with destiny’ that Nehru explained in his historic speech is still miles away because the appointment of judges with reference to their social philosophy, it would appear, is not a criterion (to be followed) by the collegium (of the Supreme Court, which makes binding recommendations on appointment of Judges).”



Mapping activism

Ranjan’s book maps the landscape of judicial activism in just five chapters with clarity and elegance. In his introduction, he, with the help of an interesting anecdote, makes the plea that some ambiguity in law is desirable to give limited discretion to judges to avoid horrendous miscarriage of justice. But the discretion, he adds, has to be exercised with utter circumspection, only for the purpose of arriving at justice.

If there is a gaping hole in the law that causes injustice, judges should not alter it but should adumbrate it so that the legislature plugs it, he explains.

The author has coined a term, “judocracy”, to refer to judicial overreach; yet, he does not think the term needs explanation anywhere in the book. Not even the index has an entry for this term, which confirms that the author did not use it except in the book’s title. Upendra Baxi, as the blurb of the book shows, also found the term very striking.

But some explanation can be found in the introduction, where the author says that it refers to a kind of judicial over-activism and to the perception in the early 1990s that the judiciary was virtually running the government and that the Supreme Court was the real repository of power. He then posits the question whether the court has come of age now and whether we are heading for a supreme dictatorship—of the Supreme Court—then, a warning first given by Nani A. Palkhivala, who, according to the author, was the first to discern this trend and react.

It is clear that the author is critical of judocracy, as, in his words, the overpowering role of the judiciary, without any accountability, is dangerous. While the author wants an improvement in the quality of the judges’ appointment process, and tempering the powers of the judiciary to punish for contempt, he concludes that legislators have given ample justification for judicial intervention by their reprehensible behaviour and that a government with a fractured mandate is responsible for the overbearing role of the judiciary in the governance of the country. These are debatable issues.

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