Legal perspectives

FOR students of the Indian Constitution, Professor M.P. Jain's books and other writings on Indian legal history, administrative law and constitutional law have been prescribed texts for many years. One of the founders of modern Indian legal education and research, Jain was Professor of Law at Banaras Hindu University, Delhi University and the University of Malaya. He was also actively involved with the Indian Law Institute, New Delhi, in its formative years.

The last edition (fifth) of his book under review, Indian Constitutional Law, was published in 2003, shortly after which Jain passed away. Right from the first edition (published in 1962), Jain's approach has been to present, in the narrative form, systematically and in an easy-to-understand style, the intricate subject of constitutional law. The arrangement of the contents of the book does not adhere to the scheme of the Articles in the Constitution but aims to give a coherent and integrated picture of the Constitution as a whole and of the working and practices of the government machinery.

The well-known legal scholar Professor Upendra Baxi, in an obituary on Jain in Delhi Law Review in 2004, wrote thus: M.P. [as he used to be called fondly] inspired affection, but never a sense of awe, usually associated with and distinctively Indian law school modes of wielding often tyrannical academic institutional power and authority; in this, it must be said, Mahavir [as Baxi called him affectionately by his first name] differed from many of his luminous contemporaries. As a teacher, researcher and author, Mahavir remained accessible to all; he wrote clearly and cogently. He did not believe that simplicity in writing betrayed the complexity of the field. He made the law bare in all its august yet technical, turgid, and prosaic detail.

According to Baxi, M.P. believed that the law had an autonomous life of its own and that the stories concerning the development of the law had to be so told as to foster legalism a public ethic of rule following.

Legalism as a virtue is best understood as a judicially imposed corpus of restraints on executive and legislative power, and as Baxi puts it aptly, is irritatingly irrelevant to the task of making India safe' for the community of foreign investors, an aspect of contemporary Indian globalisation.

To describe the sixth edition of Indian Constitutional Law as revised by Justice Ruma Pal, former judge of the Supreme Court, and her husband and senior advocate, Samaraditya Pal, two illustrious legal practitioners, is a misnomer. The book needs periodical updating in order to keep pace with the changes in the constitutional law, and the authors have taken extreme care to keep the basic text intact while not missing the latest case laws.

The Pals admit in the preface that they expected a revision of Jain's book to be a daunting task not only because of its size but because of the author's formidable reputation as a scholar. Jain's views on the various aspects of the Constitution, they said, were erudite yet simply articulated and balanced yet definitive.

The Pals claimed that the opinions earlier expressed by Jain and the format adopted by him were maintained though they had some reservations. They also justified the addition of a new chapter on education, in view of the introduction of Article 21-A as a fundamental right guaranteeing the right to education.

The comments on these case laws by the Pals are significant. It is difficult to say whether Jain would have agreed with all the comments and interpretations interpolated by the authors. While a reader would be interested in separating the interpretation of Jain from that of the Pals, indicating this in the body of the text would have been rather cumbersome and might have even affected the style of the book. As a result, a reader has virtually to compare the fifth and sixth editions to separate the Pals' comments from Jain's.

A few instances of additions by the Pals help illuminate the value of the sixth edition. In 2007, the judgment of Justices Markandey Katju and A.P. Mathur of the Supreme Court against judicial activism by the Bench invited a lot of attention. In his ruling in Divisional Manager, Aravali Golf Club vs Chander Hass, Justice Katju spoke in favour of the classical separation of powers as enunciated by Montesquieu.

In their commentary in the book, the Pals state : The Bench seems to have broken down in the face of intensely adverse criticism launched principally against the Supreme Court's activist' role by legislators as well as the executive. All the observations of the court relating to separation of powers was wholly uncalled for since the real question in controversy was whether the Punjab and Haryana High Court could direct creation of posts to accommodate daily wage earners who, according to the High Court, ought to have been regularised. This issue had been answered in the negative by a long line of cases and, therefore, the law was well-settled on the issue. In fact, the sudden attack on the judiciary by the judiciary finds place in the judgment after the court, having considered the merits, allowed the appeal and set aside the judgment and order of the High Court.

The Katju Bench said it was compelled to make some observations about the limits of the powers of the judiciary because it repeatedly came across cases where judges were unjustifiably trying to perform executive or legislative functions, and in its view, it was clearly unconstitutional. In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the state, the Bench observed.

The Pals, in their harsh comments on these observations, state that these are not only obiter but betray a basic constitutional criterion that judges cannot convert the courts into the hustings. Uninformed obiter of the Supreme Court can attract media attention to the judges who author such obiter but tends to lower reputation of the court amongst the right thinking members of the society and shake the confidence of the people in an institution charged by the Constitution to enforce the rule of law, the Pals write. They felt the Katju Bench displayed an amazing lack of courage in pointing out any particular precedent when the courts exceeded their jurisdiction and usurped the powers of the other organs of the state.

Another interpolation by the authors in the introductory chapter, citing a Supreme Court judgment delivered in 2004, says: The Constitution is an organic living document. Its outlook and expression as perceived and expressed by the interpreters of the Constitution must be dynamic and keep pace with the changing times. Though the basics and fundamentals of the Constitution remain unalterable, the interpretation of the flexible provisions of the Constitution can be accompanied by dynamism, and lean, in case of conflict, in favour of the weaker or the one who is needier.

Drawing from another judgment, delivered by the Supreme Court in 2008, the Pals made this addition while discussing federalism: Instead of the word federation', the word Union' was deliberately selected by the Drafting Committees of the Constituent Assembly to indicate two things, namely, that the Indian Union is not the result of an agreement by the States and the component States have no freedom to secede from it. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.

A discerning reader will be able to identify similar interpolations by the Pals, which further enrich the understanding of Jain's study of Indian constitutional law.

In his obituary, Baxi observed that M.P. primarily conceived the legal historian's craft as a rather relentless pursuit of the dull detail of the development of legal institutions and doctrines and doubted grand designs and equally grand narratives.

Alternative narrative

In contrast, the author of the second book under review, Mithi Mukherjee, also a legal historian, believes in providing an alternative historical narrative of the British Empire and India's struggle for independence in order to understand the Constitution an approach with which M.P. would have been uncomfortable.

An Assistant Professor in the University of Colorado at Boulder, United States, Mithi Mukherjee teaches modern South Asian history and the history of law and human rights. In her book, she argues that the British Empire in India was internally divided between two competing but also collaborating political perceptions (which she calls discourses): the colonial and the imperial.

The colonial was a discourse of governance driven by ideas of territorial conquest, power, violence, domination, and subjugation of the colonised. The imperial was based on a supranational deterritorialised discourse of justice under natural law, and was critical of the arbitrary exercise of power by the colonial government, even as it claimed to speak on behalf of the people of India.

In his impeachment trial in the British House of Lords in 1788, Warren Hastings, the first Governor-General in India, defended his actions in the language of the colonial discourse of power. In the prosecutorial speeches of Edmund Burke, representing the case of the people of India, the imperial discourse of justice under natural law was constructed as a possible basis for British rule in India.

With the transfer of power from the East India Company to the Crown in 1858, the British monarch was presented as a figure who stood above the identity and interests of England as a way to mask the foreign origin of the colonial state. Soon, the British Empire invented the twin discourses of justice as equity (a system of natural justice followed in the absence of laws) and justice as liberty as its two pillars in India.

The equity courts, based on the notion that the monarch was the source of all justice, were grounded in moral principles and were addressed to the compassion and mercy of the King.

Torn by internal conflict, it was claimed, India was in a desperate need of a neutral and impartial power (necessarily foreign) at the helm of the state to secure both justice and order.

Justice as liberty, on the other hand, took the form of a teleology or imperial goal that was based on the assumption that India could move towards a future of liberty or self-government. Thus Indians were to receive liberty as a gift from the imperial monarch.

Mithi Mukherjee's central argument is that much of the British imperial political legacy in post-colonial India consists of the continuing relevance of this historical development: the Congress hoped to receive freedom as a gift from a monarchy that was also foreign. Therefore, the Congress thought of freedom as a privilege and not a right. In another debatable proposition, she suggests that the Congress was unable to envision complete national independence outside the empire. The goal of Home Rule that the Congress articulated before the arrival of Gandhi assumed the ultimate sovereignty of the British monarch.

Gandhian discourse

The immense appeal of Gandhi's new mode of politics forced the Congress to suspend its own teleology of imperial justice and affiliate itself to the movement for national independence. But Gandhi's emphasis on renunciation, Mithi suggests, was unsuitable to governance in independent India.

Thus, as soon as national independence was achieved, the Gandhian discourse receded into the background. As the reins of the government fell into the hands of the Congress, it resurrected the temporarily suspended discourse of imperial justice as equity as a discourse of governance, and made it the foundation of the Indian Constitution.

The other element of the legacy of justice as equity, the imperial monarch, soon resurrected itself in the dynastic leadership of the Indian National Congress, represented by the Nehru-Gandhi family, which continues to be a powerful force in Indian politics today. For those looking for a consistent explanation for the relevance of dynasty in Indian politics, this is indeed a compelling argument.

But there are certain problems in this simplistic understanding. Many would consider as preposterous her argument that the Constitution-makers were less than enthusiastic about the idea of universal adult franchise. According to her, the fact that the Constituent Assembly opposed ratification of the Constitution on the basis of adult suffrage buttresses her argument.

The words in the Preamble to the Constitution, We the people of India give to ourselves this Constitution, she suggests, conceal the fact that the framers saw the Constitution as a gift of the state, and not as a reflection of the will of the people.

She argues that universal adult franchise is connected fundamentally with the nature of the Gandhian mass movement. This movement helped develop a democratic ethos in which people came to see themselves as sovereign: the masses saw their freedom as emanating from their own actions, in their ability to resist and control the state.

By introducing universal adult suffrage and five-year elections, however reluctantly, into the Constitution, the framers were accommodating this Gandhian legacy that was too powerful to ignore. But they were determined to prevent the electorate from exercising any political function by their direct vote.

All devices of direct democracy, such as referendum, recall, or initiative, were meticulously avoided in the Indian Constitution. She thus points to a discursive continuity between the British Empire and the framers of the Constitution in their distrust of the people of India, and of democracy as such.

Interesting though this narrative is, it is inadequate to explain the Indian Constitution. First, the link between Gandhian legacy and universal adult franchise is tenuous. Gandhi was keen to strengthen democracy at the grass roots, instead of holding periodical elections to legislative bodies, to ensure stable and strong governments at the Centre and in the States. Secondly, the framers denied devices of direct democracy to the people because these were not practical in a huge and diverse country like India and not because the framers considered the people immature.