Bridging legal traditions

Print edition : September 01, 2001
Professor Dietrich Conrad, 1932-2001.

WHEN A.G. Noorani's article "Behind the 'basic structure' doctrine: On India's debt to a German jurist, Professor Dietrich Conrad" appeared in Frontline (May 11, 2001) little did one imagine that Conrad would soon be no more. Conrad passed away in the early hours of June 1. Although he had remained indisposed for quite some time, his death was taken by the academic world with disbelief and grief. He was a devoted scholar and a gentleman. His passing away is a loss for the field of Indo-German legal research and academic exchange.

German scholars have made remarkable contributions to a number of disciplines that could be subsumed under the rubric of Indology. As Indologists they have contributed to Indian law too. Dietrich Conrad started with the discipline of law and stayed in it all his life. His scholarship was, of course, not confined to law; it extended to other disciplines, including music. His contribution to law and legal research in India can be noted in three spheres - law in general, Mahatma Gandhi's legal philosophy, and academic exchange.

Conrad headed the law department at the South Asia Institute of the University of Heidelberg from its founding in 1963 until his retirement in 1997. In the absence of a substitute for him, he looked after the department for some time even after retirement. Unfortunately no replacement could be found during his lifetime. This was a matter of concern for him because he wanted the department, which he had founded and nurtured with much care, to flourish and move ahead in the direction which he gave it. Well before his retirement he had started encouraging young German scholars to develop an interest in Indian law so that one of them could be appointed to take charge of the department. Conrad was also associated with the Max Planck Institute for Comparative Public Law and International Law at Heidelberg as an expert on South Asian law.

In his article Noorani referred to the most seminal contribution of Conrad to India's constitutional jurisprudence, namely "the basic structure" limitation on the power to amend the Constitution. This limitation, though brought to the notice of Indian lawyers by Conrad as early as 1965, was not only an innovation in the Indian Constitution when it was laid down by the Supreme Court in the Kesavananda Bharati case in 1973 but was almost unheard of in the world of common law. Since then, however, besides becoming part of the common law in India, it has travelled to the neighbouring countries which have either expressly mentioned it in their constitutions, like Nepal, or have it implied in them, like Bangladesh. Courts in Pakistan still waiver in their position on the question but are fully familiar with the limitation and have applied it in a few cases without expressing their opinion in so many words.

The basic structure limitation was, however, known to the civil law countries and was, among others, expressed in the German Constitution - the Basic Law of 1949. By bringing it to the notice of the lawyers in India and by convincing them about its natural existence in the Indian Constitution, or for that matter in any Constitution, Conrad bridged the common law and the civil law traditions in a major way. In order to ensure the durability and smooth operation of the bridge, he continued to supervise it. After its completion in the Kesavananda Bharati case (1973) and use in the Indira Gandhi case (1975), but before the Minerva Mills case (1980), Conrad thoroughly appraised it in an article published in the 6-7 Delhi Law Review 1(1978-79). Reiterating that the basic structure doctrine had sound theoretical foundations and was of great practical utility, inasmuch as it tamed the constituent power and minimised the chances of its frequent exercise, he supported the idea based on the civil law model of enacting the basic structure doctrine into the Constitution. Such enactment, he suggested, would give it greater certainty and reduce the chances of Judges going astray or being blamed of misuse of their power to strike down constitutional amendments for violation of the basic structure.

Much later, after the bridge was in operation for over two decades in India and was also opened to other neighbouring countries, Conrad re-examined it and found that it was sound in all respects and had been reinvigorated by its use and expansion on the Indian subcontinent as well as in the civil law countries. He was satisfied that "the basic structure doctrine" was shaping into a standard measurement of constitutionality of the behaviour of different organs of the state in India as was evident in its application in the Bommai case (1994). The case did not involve any constitutional amendment, yet the Supreme Court held that secularism was part of the basic structure of the Constitution and, therefore, if a State government acted against secularism it could be said that a situation had arisen in which the government of the State could not be carried on in accordance with the Constitution and, therefore, that State could be brought under President's Rule. In this case Conrad also noted another strand of the bridge, which is an important aspect of the civil law system, "that there are, beyond the wording of particular provisions, systematic principles underlying and connecting the provisions of the Constitution ... (which) give coherence to the Constitution and make it an organic whole." In the light of these developments he also pointed out that the Supreme Court's ruling in the Indira Gandhi case - that the basic structure doctrine applied only to the constitutionality of the amendments and not of ordinary legislation - required reconsideration. Later in Indra Sawhney II case (2000) the Supreme Court applied the basic structure doctrine to legislation also.

But neither the bridging of legal traditions nor Conrad's contribution to Indian law is exhausted by the basic structure doctrine. Conrad did original writing on diverse legal issues, taking into full account history, politics, economy, culture, religion, society and other mores of India. For example, examining the emergency provisions of the Constitution and their use, Conrad pointed out that emergency powers were not intended to be used to improve the economy of the country. He observed that the provision for the imposition of a state of emergency in any part of the country, introduced by the 42nd amendment and not removed by the 44th amendment, was unsound and its use would lead to the generation of a feeling of alienation among the people of that part of the country; he opined that greater autonomy must be conceded to the States and that the use of Article 356 must be curtailed. Further, on the concept of the rule of law, Conrad said that it could not be attained in India unless the judicial machinery was reformed in order to provide expeditious and effective remedy against the violation of laws. Again, he argued for a right to basic necessities of life capable of being judicially enforced. He said that certain canons such as the basic structure doctrine had to be recognised even though they were incapable of being expressed in terms of positive law, and that the existence of different personal laws had to be re-examined in the light of the right to equality under the Constitution.

AMONG Conrad's scholarly pursuits, Mahatma Gandhi occupies a unique place. He devoted much time, energy and other resources to study Gandhi in a legal perspective. Perhaps no one has studied Gandhi's legal philosophy, and definitely not in so much depth and detail, as Conrad did. His major work on Gandhi is written in German and has not yet been published. Whatever little he has published on Gandhi in English - such as "Gandhi's Egalitarianism and the Indian Tradition" or "The Influence of Western Liberal Ideas on Gandhi's Constitutional Philosophy" - is incomparable in its novelty, freshness and utility. These and two other writings on Gandhi in German are reproduced in the book, Zwischen den Traditionen, mentioned below. Maximum bridging of legal traditions is represented in these writings. With remarkable learning of Western and Indian legal traditions and philosophies, Conrad convincingly establishes Gandhi's internalisation and conversion of many Western concepts into indigenous Indian concepts and practices which became models for the rest of the world, including the West. Nowhere else can Western and Indian philosophies and concepts find so much blending in practice as in these writings of Conrad.

A selection of his writings between 1970 and 1990 has been compiled under the title Zwischen den Traditionen. The book was published in 1999 by Franz Steiner Verlag, Stuttgart, under the auspices of the South Asia Institute of the University of Heidelberg. Many other writings of Conrad published during this period and later, still remain scattered. One wishes that all of them will be easily accessible to Indian and other readers.

The third and the most important strand of Conrad's contribution to Indian law and legal system is the promotion of academic exchange. Unlike the better-known German Indologist Max Mueller, Conrad did not study Indian society and its laws from a distance. He tried to be a participant in the Indian legal system as much and as often as he could. His physical connection with India dates back to 1964, when during his maiden visit, he established contacts with lawyers in different parts of the country and also delivered ground-breaking lectures on the limits of amending power. Later, in 1978-79, he was a Visiting Professor at the University of Delhi. My association with him started during this period. We taught together a course on administrative law to LLM students. Apart from sharing his teaching experience with his colleagues, he gave a few seminars at the Faculty and other academic and research institutions. He was also associated with the Faculty journal, the Delhi Law Review. His contributions to the journal are used as required readings for LLB and LLM classes at the University of Delhi. Conrad visited the Faculty again in 1996 for a few months. This time we taught together constitutional law and comparative law to LLB students. In between he made several short visits, which were either combined with his visits to other South Asian countries or were exclusively to India. In the late 1980s he was also nominated an Honorary Professor at the Indian Law Institute, New Delhi. He held this position until his death.

Not only did Conrad visit India and have exchanges with Indian scholars, but he encouraged Indian scholars to visit Germany and learn about the country and its legal system. Before his initiative in this regard, a few Indian scholars had contacts in Germany in the field of international law but not in any other field. His programme started perhaps with the visit of Professor M.P. Jain in the late 1960s to the South Asia Institute for a few months. But because of the language barrier not much advance could be made. In a chance academic exchange after his return from Delhi in 1979 Conrad asked me whether I would be interested in studying the German legal system for which the learning of the German language was a sine qua non. I agreed and on his recommendation was awarded the Alexander von Humboldt Fellowship in 1980. I learned the language and then the law, which resulted in the publication of my book on "German Administrative Law in Common Law Perspective". During the language course in Freiburg and later in Heidelberg, Conrad introduced me to several reputed lawyers, judges and legal scholars, and they helped me in every possible way in my understanding of the society and law of Germany. Everyone in Conrad's nuclear and extended family treated me as a family member. In 1987-88, he also gave me an opportunity to work in his place at the South Asia Institute when he was a Fellow at the Institute of Advanced Study in Berlin. My visits were repeated several times. Scholars in fields of law other than international law are also now visiting Germany for research and academic exchange.

This brief account of Conrad's contribution to Indian law and legal system will remain incomplete if it does not point out that more than intellectual qualities and hard work, he was full of humanism. Like a seer in search of truth he conducted himself unassumingly, almost to the extent of self-negation and self-effacement, and with an open and free mind. He never assumed that all wisdom flows from the West to the East or vice versa. Nor did he adore the West and condemn the East. On the contrary, he saw the East with concern, sympathy and compassion. He knew that mere intellectualism without concern for human feelings was of no use. Intellectualism that does not bring succour and delight to the suffering humanity is no more than a wasteful, even rather harmful, exercise.

M.P. Singh is Professor of Law at the University of Delhi.

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