Disturbing signals

If constitutional dialogue is taken as tyranny, Emergency days in new fatigues may not be far behind. There are enough signs to caution the country.

August 9, 1976: Indira Gandhi (left) with Youth Congress president Ambika Soni (second from left) and Sanjay Gandhi (second from right). When constitutional dialogue is suspended, as it was during the Emergency, extra-constitutional power centres flourish.

Are only binary responses possible in a debate? Two antithetical responses vociferously raised? This appears to be the case in the wake of the recent verdict by the Indian apex court striking down the Constitution amendment on appointments to the higher judiciary. Supporters of the decision proclaim that the Constitution is what the judges say it is; hence, judicial primacy is a required constitutional imperative. On the other hand, the government and its supporters rave and rant that “Indian democracy cannot be a tyranny of the unelected” (Arun Jaitley, Cabinet Minister); that “it is a flawed judgment ignoring the unanimous will of Parliament” (Mukul Rohatgi, Attorney General).

Are not the comments from the executive wing less like a rational critique and more like the reactions of a spoilt brat giving vent to puerile anger and calling names like an immature ordinary litigant who, while losing a case, behaves as if he alone is right? If the court cannot be persuaded to accept the government’s stand, it is not an adjudication but a confrontation and tyranny! Perhaps, in hindsight, the government’s outpourings in a way prove that the court’s ruling was right.

The rule of law, not men

Should we not suspect and exclude even the highest dignitaries such as the Law Minister from safeguarding the independence and the separation of the judiciary from the executive and the legislature? A civilisation that has a tradition of dethroning kings through samitis of the people for not following fundamental values ( dharma ) may not find it strange. But those who have lost those moorings except for fanatically instigating people in the name of love for the selective past may insist on trusting the ipse dixit of those holding high positions. The most striking content of the constitutional feature called the rule of the law may be the complete exclusion of the rule of men even if they may be the wisest on earth.

Plato was ready to prefer the rule of wise men. Is it “more advantageous to be subject to the best man or the best laws?” Aristotle anticipated our choice by rejecting the all-wise ruler: “To invest man with authority is to introduce a beast, as desire is something bestial, and even the best of men in authority are liable to be corrupted by anger.” Law, in contrast, is “intelligence without passion”.

Modern constitutions have synthesised the wisdom of Plato and that of Aristotle. “And so, having rejected the philosopher king in favour of the Rule of Law, we call him back to limited service and name him judge. In this capacity he fills the gap between the generalities of law and the specifics of life” (Wallace Mendelson).

Judge Irving Kaufman has rightly said: “Much tension accompanies the job of deciding the questions that all the rest of the social matrix has found too hard to answer…. For the job of adjudication is to decide those questions according to particular rules and free of the influences that often affect decisions made outside the courtroom. We represent a third value that is not, and is trusted not to be, the prisoner of either wealth or popular prejudice…. Thus all the pleasing mummery in the courtroom, all our political insulation, indeed all our power, is designed to support a message: ‘Whichever side you’re on, we are not on your side or your opponent’s side; you must persuade us not that you’ve got money or that you’ve got votes, but that your case is lawful and just.’”

However, once gone astray, judicial power could become political power without democratic responsibility. This would run counter to the main duty of modern constitutionalism: to limit and check power (Carlo Guarnieri). Moreover, in Justice Benjamin Cardozo’s memorable words, “the great tides and currents which engulf the rest of men, do not turn aside in their course, and pass judges by”. That is the reason why we cannot dilute, even to an iota, the principle of separation and independence of the judiciary from the executive even at the stage of selection and appointment of the judges of the constitutional courts.

Independence and separation

Judicial independence is needed not for the benefit of the judges or the judiciary themselves, but for the people. Judicial independence has been recognised as a universal human right: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal…” (The Universal Declaration of Human Rights, UDHR, Article 10; The International Covenant on Civil and Political Rights, ICCPR, Article14(1)).

Francis Lord Bacon had famously said: “It is a happy thing in a state when kings and state do often consult with judges: and again, when judges do often consult with the King and the state, the one when there is matter of law intervening in matters of state: the other when there is some consideration of state intervening in matter of law.”

Putting those sentences in modern dress, Bacon was in favour of consultation and interaction between the executive government and the judges, as contemplated in the quashed amendment. But that doctrine of Bacon is out of favour today. Lord Alfred Denning was categorical that it was bad advice: “The judges must be independent of the executive” because “…the government may have its own axe to grind”.

This is much more relevant in this case since the government is a major litigant and the judges have the duty to protect the citizens and even foreigners from governmental and legislative inroads and attacks.

Separation is necessary for ensuring independence and impartiality. Collaboration, or shared procedures between the executive and the judiciary will be the death knell not only for our freedoms but also for democracy itself. What our Constitution, like all evolving ones, contemplates is separate and dialogical procedures between the executive, the legislature and the judiciary, and not among their members.

Even in appointing judges, this separate and dialogical process is necessary, not a process of dining together and sharing the bed between the members of the executive and judiciary in the name of collaboration or joint committees. This is what our Constitution meant by providing for appointment after consultation.

What the little citizens of this country seek and are proud of is the independence and impartiality of our adjudicatory tribunals, especially at the levels of the high courts and the Supreme Court. This they would be prepared to ensure at any cost. When this independence and impartiality may be in conflict with efficiency, merit, or even accountability, people may have to choose the lesser evil, independence and impartiality.

Of course, vox populi est vox dei (The voice of the people is the voice of God). But it cannot be presumed that the people’s voice is exclusive to elected representatives and civil society. The people’s voice is perhaps better represented by the Constitution, interpreted by independent and impartial judges. That voice alone can safeguard the inalienable freedoms of those whose voice get excluded from the elected representatives and the eloquent civil society (yesterday’s Greenpeace or Teesta Setalvad and today’s Bajrang Dal or Gau Raksha Samiti).

Confrontations as dialogue

In the constitutional history of the United States, there is this anecdotal narrative about a confrontation between the judiciary and the executive over the power of judicial review. This friction between Chief Justice John Marshall and the President of the U.S. is gratefully remembered by the world at large for the irrevocable installation of judicial review in modern constitutionalism. An irate President Andrew Jackson declared: “John Marshall has made his decision, now let him enforce it.” Are the modern Jacksons of Indian origin tempted to imitate him imprudently? But John Marshall and his challenge to the legislature and the executive still resonate through the numerous constitutions of the world.

In India, it is the confrontations between the judiciary and other pillars of the state, without breaching the “Lakshman rekha” of each, which have evolved into constitutional dialogues and made the growth of constitutionalism possible.

Economic measures such as land reform, social engineering initiatives such as reservation, events of political participation such as elections, etc. have been arenas where several bloody wars between judges and politicians have been waged. Both have almost exhausted their weaponry. Still, volcanic undercurrents of this duel have been taking shape both in Parliament and in the Supreme Court. The present quashing and its aftershocks may not be the last ones.

Constitution Bench hearings on the validity of constitutional amendments neutralising previous court rulings have been numerous and some are still pending. Bills and proposals for further Constitution amendments are being finalised or pending before the parliamentary committees concerned.

The very first amendment of the Constitution resonated with the echo of this confrontation. One of the initial decisions of the Supreme Court on reservation and quotas for backward classes in education in the Champakam case (1951) led to the insertion of Article 15(4) in the Constitution by the first amendment to the Constitution of India. Then, more recently, a seven-judge bench in the Inamdar case (2005) prohibited reservation for backward classes in private unaided professional colleges, which necessitated the 93rd Constitution amendment, introducing Clause (5) to Article 15, providing for such special provisions. The dialogue continued in the further scrutiny of this amendment by Constitution Bench hearings in the Ashok Kumar Thakur case (2008) and the Pramati Educational and Cultural Trust case (2014).

In the initial years after Independence, judicial review led to the setting aside of legislation pertaining to land reforms and zamindari abolition. This led to the inserting of legislation in the Ninth Schedule of the Constitution so as to exclude such legislation them from the purview of judicial review. Confronting this, the Supreme Court, in the I.C. Golak Nath case (1967), held that Parliament, by way of constitutional amendment, could not take away or abridge Fundamental Rights. Another dialogue through confrontations occurred when the Supreme Court, by a majority of seven to six, propounded the doctrine of “basic structure” of the Constitution, which limited the amending power of Parliament under Article 368 ( Kesavananda Bharati case, 1973).

Then came tragic days. Instead of respecting the separation of powers and following a constitutional dialogue, the executive attempted to intimidate the judiciary by the first supersession in the Supreme Court on April 25, 1973. Thereafter, the Emergency was declared on June 25, 1975, which continued until March 21, 1977. During the Emergency, the power of judicial review vested in the higher judiciary was sought to be undermined by way of constitutional amendments, though it was restored subsequently.

The Mandal judgment initiated a fresh round of confrontations. The bases of some of the declarations in the Indra Sahwney case (1992) and other Constitution Bench decisions restricting reservation were removed by Constitution amendments.

Though the nine-judge bench had upheld the constitutionality of reservation in government services even for Other Backward Classes (OBCs), it questioned the desirability of reservation for Scheduled Castes and Tribes in some specialities and super-specialities. It also reiterated a judgment which prescribed a reservation ceiling of a maximum of 50 per cent of total posts and called for the exclusion of the creamy layer from backward classes. It further declared reservation in promotions, even for Scheduled Castes/Scheduled Tribes, unconstitutional, though this was not a point under issue and did not arise in the factual matrix of the case. One of the judges refused to rule on this point on account of this. As a gesture of judicial mercy or feudalistic dole, reservation in promotions was allowed to continue for five more years.

This necessitated the beginning of a new era of confrontations. After the expiry of five years, Parliament, in its constituent capacity, had to step in. Thus the 77th amendment was brought in, adding Clause 4A to Article 16 of the Constitution, specifically providing for reservation in promotions for S.Cs/S.Ts.

Another judicial missile also invited counter-offensive from the legislative. To reduce the devastation of the judicial punch of the 50 per cent ceiling on reservations, the 81st amendment was made, introducing Clause 4B in Article 16.

Parliament had to again use its constituent power by amending Article 335 of the Constitution to neutralise the interpretation of this Article in the Vinod Kumar case to the effect that this Article did not permit relaxation in qualifying marks or lowering the standards of evaluation for S.Cs/S.Ts in matters of promotion.

Then there was the Constitution Bench decision in Ajit Singh Januja , declaring that members of SCs/STs would not be entitled to consequential seniority if they were promoted following the roster points for reservation. To counter this, the 85th amendment was brought in. These amendments were challenged by members of the general (unreserved) categories on the ground that they were violative of the basic structure of the Constitution. A Constitution Bench in the Nagaraj case (2006) reluctantly upheld these amendments, introducing new problems and issues that may necessitate further Constitutional amendments which are taking shape.

In the meantime, the Tamil Nadu Assembly jumped the 50 per cent ceiling under the shield of Article 31B and the Ninth Schedule. This law and the Constitutional amendment were tested with other such laws in the Ninth Schedule case ( Coelho judgment, 2007) before another Constitution bench.

If constitutional dialogue is taken as tyranny, Emergency days in new fatigues may not be far behind. There are enough signs to caution the country to be sufficiently vigilant.

Constitutional democracy

Was the recent verdict striking down the Constitution amendment on the appointment of judges an assertion of the primacy of the judicial pillar of the nation state or an attempt to remind us that ours is not a majority-based or unanimity-based democracy but a constitutional democracy, where primacy is given neither to the legislature, nor to the executive, nor to the judiciary but to the fundamental values which we call the Constitution? The latter appears to be the case. Again, it is an amendable Constitution. The changes have to be made to the alterable features and not to the basic structure, which itself would be discernible through a higher dynamics of constitutional dialogue between the three pillars, subsuming other less visible dialogues between people, media, institutions and processes.