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When the Independence Bill was debated in the British Parliament, then leader of opposition Winston Churchill remarked, “The Indian political parties and political classes do not represent the Indian masses. It is a delusion to believe that they do…. In handing over the government of India to these so-called political classes, we are handing over to men of straw, of whom, in a few years, no trace will remain.” Seventy years after the Constitution was adopted, many Indians are shockingly convinced that the prophetic observations of our worst critic may soon come true. This author, however, believes that our Constitution, political leadership and the highest court have performed fairly well, despite ups and downs.
American jurist Oliver Wendell Holmes famously said, “The life of the law has not been logic: it has been experience.” We are a successful democracy today and a leading economic power. There have been authoritarian and autocratic leaders as well, but they were also thrown out of power through popular vote. It is a matter of global concern that democracies are turning towards authoritarianism not through military coups, but through the ballot. In these challenging times, the courts must stand up to protect people’s rights from the rising authoritarianism tendencies.
Chief Justice Harilal Kania had said at the inauguration of the Supreme Court that the court must be “quite untouchable by the legislature or the executive authority in the performance of its duties”. Our Supreme Court’s record has been by and large satisfactory in protecting civil liberties, though there have been a few anxious moments when the court behaved more like a “committed” judiciary upholding the curtailment of rights by the government.
Man since antiquity has pondered over the problem of how to reconcile the need for order and authority in society with the desire for individual liberty. In framing a government to be administered by men over men, the greatest difficulty indeed lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself. Humanity has always had a longing to be free in addition to being well governed. As a result, a great deal of thought and political inventiveness has gone into the attempt to create political systems that will allow governments and its organs to exercise all the power essential to attain the collective ends of the society, without compromising or destroying the liberties of its individual members. An attempt to institutionalise such a social condition is constitutionalism—the concept of limited government. Constitutionalism means that all power rests on the understanding that it will be exercised according to commonly accepted principles, that the persons on whom power is conferred are selected because it is thought that they are most likely to do what is right. Reverence and blind faith may be good for gods and goddesses, not political leaders. The governmental powers essential for the realisation of constitutional values should be controlled in order that it should not itself be destructive of the values it was intended to promote. Political masters must understand that people’s consent through elections cannot justify grossly immoral and unjust laws. In the Privacy judgment (2017), Justice Chalmeshwar rightly talked about the importance of “silences of the Constitution” and therefore government must keep in mind not only the text of the constitution but also its founding principles.
Engraving dated 1860 depicting the interior of the Supreme Court of Madras (as the high court was known until 1862).
Fundamental Rights as Limitations on Governmental Power
People had not surrendered basic human rights to the State even at the time of the social contract that brought the State into existence. In fact, the brutish, nasty, selfish humanity of so-called state of nature created the State only for the protection and preservation of these rights. Every human being is born with these rights and constitutions merely acknowledge them rather than confer them. These rights are inalienable and indivisible. The chapter on fundamental rights in our Constitution comprises 26 articles and these rights perform the sacred function of limiting the power of the State, from where the greatest threat to such rights comes, and that’s why this chapter begins with the definition of State in Article 12. The other institutional methods of limiting the power are to be found in the doctrines of distribution of powers, separation of powers, rule of law and judicial review.
The Constitution has not used the expression judicial review, yet the constitutional courts do have this power as Article 13 says any law that contravenes fundamental rights shall be void to the extent of contravention. In fact, Chief Justice Kania in A.K. Gopalan (1951) said this article was included out of abundant caution and it merely makes explicit what is implicit in all constitutional limitations. Fundamental rights were given such importance that Article 32 entitles people to directly approach the highest court for the enforcement of these rights. B.R. Ambedkar called this article the very soul of the constitution. Chief Justice Patanjali Sastri observed in V.G. Row (1951) that the Supreme Court has been assigned the role of a sentinel on the ‘qui vive’. It is both the first court as well as the court of last resort for the protection of rights.
The demand of independence was itself an assertion of the right to self-determination and individual autonomy in expression, beliefs and opinions. The Constitution not only protects individual rights, but also guarantees group or community rights. In fact, while it made individual rights subject to ‘reasonable restrictions’, rights of minorities as under Article 30 were, textually speaking, made absolute. We borrowed from the United States the idea of civil liberties. These fundamental rights largely reflected people’s aspirations, though important socio-economic rights were disappointingly put in the chapter on directive principles and made non- judiciable.
In the initial years, the apex court bestowed a lot of confidence in Parliament as the custodian of the Constitution, upholding constitutional amendments including the first that inserted the ninth schedule, which not only negated the mandate of Article 13, but endorsed a kind of hierarchy of laws under which ordinary laws passed even by the legislative assemblies acquired a status higher than the Constitution as they could no more be challenged as violating it. Similarly, in A.K. Gopalan (1950), the court called the preventive detention law a “most unwholesome encroachment upon the liberties of the people”, yet upheld it by giving an extremely narrow interpretation to the expression “procedure established by law”—and thus the government could take away the right to life or personal liberty with just any validly passed law.
The Madras High Court moved to a new complex that was built in 1892 in the Indo-Saracenic style.
“Our Constitution has not adopted the due process clause of the American constitution,” observed Chief Justice A.N. Ray in Indira Nehru-Gandhi (1975). “Reasonableness of legislative measure is unknown to the Constitution. The Constitution has denied due process as test of invalidating law.” Thus even an arbitrary, unjust and unreasonable law will be valid. This was clear abdication of the court’s role as the protector of people’s rights. Most preventive detention laws, including MISA and TADA, were similarly upheld by the court. NSA was upheld in A.K. Roy (1982). In practice, these laws were frequently used against the political dissenters, trade union leaders and petty criminals.
Surprisingly, the court in the early decades did uphold the rights of landlords and the propertied class. In fact, several land reforms laws did not find favour with the court, leading to tussle between Parliament and judiciary. The most assertive judgment on judicial powers was Golakh Nath (1967) where the court invalidated a few amendments from a prospective date because they were impinging on the fundamental rights. It said that under Article 368 Parliament does not have the constituent power to amend the Constitution in violation of fundamental rights as this article merely provided for the procedure of amendment.
Mrs Gandhi went to people against the court in 1971 elections and after winning a landslide overturned some court judgments. When Mrs Gandhi’s government again amended the Constitution, the court in Keshavanand Bharti (1973) accepted Parliament’s power to amend, but subjected this plenary power to what the court called the “basic structure of the Constitution”. Thus the court promoted the idea of constitutionalism or limited powers, though it is true that the doctrine has given too much of the power to the court. In the Citizenship (Amendment) Act and dilution of Article 370 petitions, the court has to decide whether these two legislations violate two features of basic structure ie secularism and federalism, respectively.
The court’s judgment in ADM Jabalpur (1976) was a big setback to civil liberties and is a blot on court’s commitment to fundamental rights. Hundreds of people were detained under MISA during Emergency. A presidential order on June 27, 1975, had suspended Article 21. Several high courts proved to be independent enough to accept habeas corpus petitions, but in appeal the Supreme Court by 4:1 majority held that no relief can be given in the absence of Article 21. Chief Justice Ray held that liberty was a gift of law and may be forfeited. The dissenting judge said that without the sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning. Ray was indeed a committed Chief Justice who was appointed superseding three senior most judges. Finally the regressive decision was overruled in the Privacy judgment in 2017 with history being made in Justice Chandrachud overruling his own father’s judgment.
Supreme Court’s Crises of Legitimacy
As true custodians of the Constitution, people of India punished Mrs Gandhi and for the first time a non-Congress central government took power in 1977. The court was now suffering from the crises of legitimacy and conscience as its reputation as upholder of liberties had gone down. In an effort to regain lost trust, the court in Maneka Gandhi (1978) overruled its judgment in Gopalan (1950) and observed that liberty can be curtailed only by a law that is fair, just, reasonable and non-arbitrary. Thus the due process clause was finally read into our Constitution.
A 1927 photo recent photo of the high court in Chennai.
In subsequent years, the court widened the ambit of fundamental rights by expanding the definition of ‘other authorities’ in Article 12 and liberalising the doctrine of locus standi. Now the court no more asks the petitioner what right of yours is violated, but rather questions whose right has been violated.
The Public Interest Litigation(PIL) or Social Action Litigation restored people’s confidence in the court and the apex court was now termed as people’s court. PIL was indeed new juristic horizon and judicial socialism that worked towards the realisation of liberties. Prof Upenda Baxi rightly said that the court had now started taking the sufferings of the people seriously. For the first time, law’s full potential as an agent of social change became a reality.
Realising that the court had let down people under detention, the first phase of PILs was largely about the rights of undertrials and arrested people. In Bhim Singh (1981) and Rudal Shah (1983), the court even ordered payment of compensation under writ jurisdiction for illegal detentions. The court came down heavily against extended detentions for petty crimes. In Altamash Rein (1988), it disapproved handcuffing if the accused is not likely to run away.
In the second phase of PIL, the court started rigorous review of governmental decisions and emphasised need of fairness and non-arbitrariness in the administrative decisions. Subsequently, the court used PILs to achieve the goals of social justice, with judgments prohibiting bonded labour and child labour. It also read several new rights in Article 21 such as right to speedy trial, right to livelihood, right to environment, right to education and right to privacy. In recent years, the court has become strict in admitting PILs as some people have converted it into ‘private interest litigation’. In recent years some lawyers sympathetic to the ruling party are using PILs to just get them dismissed or to score a political point.
In some PILs, the court entered the domain of policy-making, which ideally should be the exclusive domain of government. Some of its decisions like cancellation of 2G licenses contributed to the collapse of the telecom sector.
Painting depicting a scene from the Mahabharata in which Bhishma explains the varna system of caste to Yudhishthira.
Lately, the highest court has showed no urgency in taking up habeas corpus petitions against mass detentions in Kashmir. Delay in hearing and refusal of stay in the controversial and opaque electoral bonds petitions, delay in examining the constitutionality of demonetisation and dilution of Article 370 have also caused some anxiety about its independence. In Rafale, the court preferred governmental arguments and even in review refused to give any importance to the fact that the government provided wrong information. The investigation by N. Ram and documents published in were not taken into consideration even in the review.
In Aadhaar too, the court in an unprecedented move conferred unlimited and wide powers on the speaker to decide whether a bill is a money bill or not. The judgment has almost made Rajya Sabha irrelevant by upholding the speaker’s decision to treat Aadhaar as a money bill because the Aadhaar Act is to create unique identification for the disbursement of governmental subsidy or benefit out of the Consolidated Fund of India. All the concerns about surveillance and profiling were also rejected. The court’s order on non-linking of Aadhaar with the opening of bank accounts is routinely violated and that’s why governmental assurance on the non -submission documents during the NPR process has no takers.
The Supreme Court’s judgment on the Babri mosque too was disappointing for many people. This author has no problem with the final order of handing over the disputed site for the construction of Ram temple as court itself admitted that if it is given to more than one party, no one will be able to peacefully enjoy and use this land. But the adoption of differential burden of proof for the two parties—considering mere belief as proof of possession for one party and insistence on the proof of exclusive possession from 1528 to 1858 for other party—have not enhanced court’s reputation as an impartial arbiter.
On the issue of Assam NRC, detention centres and foreigner’s tribunals too, not only did the court behave more like the executive, but it also ignored the danger of millions of Indian citizens being harassed due to its striking down of IMDT Act in Sonowal’s judgment (2005). The court got the final NRC list published on August 31, 2019 though a five judge bench has not yet pronounced its judgment on the constitutionality of Section 6A of Citizenship Act under which NRC Assam was undertaken. As many as 13 questions are pending before a five judge bench. The entire process is to be redone if Section 6A is struck down by the court.
Finally the court’s reluctance in even hearing petitions against the dilution of Kashmir’s special status and petitions challenging mass detention of people and the entire political leadership has revived the memories of ADM Jabalpur era.
But the latest judgment on right to internet and use of Section 144 has revived hopes in spite of court not passing any order striking down problematic governmental orders. One hopes that court will live up to people's expectations as the defender of their liberties.
A shorter, edited version of this appeared in print
(Faizan Mustafa is the Vice chancellor of NALSAR University of Law, Hyderabad. Views expressed are personal.)