Dispatch #42: The age of political naivety (Part 3)

In this essay, written in 2014, I discuss about Constitutionalism, Basic Structure Doctrine and how it checks the majoritarian excesses

Does constitutionalism help us better understand democracy?

“We the people as a nation, constituted ourselves as a sovereign democratic republic to conduct our affairs within the four corners of the Constitution, its goals and values. We expect the benefits of democratic participation to flow to us, so that we can take our rightful place in the League of Nations, befitting our heritage and collective genius. Consequently, we must also bear the discipline, and the rigor of constitutionalism, the essence of which is accountability of power, whereby the power of the people vested in any organ of the state and its agents can only be used for promotion of constitutional values and vision.”

These lines have been taken from the judgment given by the Supreme Court in the case of Nandini Sundar and Others v State of Chhattisgarh. In the judgment that came in the year 2011, the Court declared the State of Chhattisgarh’s appointment and arming of Special Police Officers (SPOs) to be unconstitutional and asked the state to disband Salwa Judum, a vigilante anti-Naxal group. The Court found the creation of Salwa Judum which used to coordinate with the para military forces in the counter insurgency operations in Dantewada and nearby regions as unconstitutional. 

The petitioners, Nandini Sundar, Ramchandra Guha and EAS Sharma, argued that there were instances of human rights violations of unprecedented nature, in the entire process of the creation of Salwa Judum. The SPOs were young and poor tribal who were given inadequate legal and warfare training and were merely used as cannon fodder by the state in the conflict with the heavily armed Naxalites. This landmark verdict by the Apex court is one amongst the many examples of Constitutionalism when Indian judiciary took on the executive and acted as deterrence to the excesses of a democratically elected government under the garb of counter-insurgency.

We, the people as a nation, constituted ourselves as a sovereign democratic   republic to conduct our affairs within the four corners of the Constitution, its goals and values. We expect the benefits of democratic participation to flow to all of us, so that we can take our rightful place, in the league of nations, befitting our   heritage and collective genius. Consequently, we must also bear the discipline, and the rigour of constitutionalism, the essence of which is accountability of power,   whereby the power of the people vested in any organ of the State, and its agents, can only be used for promotion of constitutional values and vision. This case represents a yawning gap between the promise of principled exercise of power in a   constitutional democracy, and the reality of the situation in Chhattisgarh, where   the Respondent, the State of Chhattisgarh, claims that it has a constitutional   sanction to perpetrate, indefinitely, a   regime of   gross   violation   of   human   rights   in   a   manner,   and   by adopting   the   same   modes,   as   done   by   Maoist/Naxalite extremists. The State of Chattisgarh also claims that it has the powers to arm, with guns, thousands of mostly illiterate or barely literate young men of the tribal tracts, who are appointed as temporary police officers, with little   or no training, and even lesser clarity about the chain of command to control the activities of such a force, to fight the battles against alleged Maoist extremists.

-Nandini Sundar & Others versus State of Chhattisgarh

In this essay I will try to explore other dimensions of constitutionalism and how it has strengthened Indian democracy. It’s difficult to fathom the Indian democracy, navigating the shifting landscapes of its politics, without the notion of constitutionalism as its bedrock. Many times obituaries have been written about the Indian democracy but each time the prophets of doom and gloom were proven false because the democratic fundamentals of this country were too strong to be withered away.

In the first part of the essay I will examine the philosophical underpinnings of democracy and constitutionalism. In the second part I will explain how constitutionalism helps us understand Indian democracy.

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Part 1:

The social contract theory is considered as the precursor of democracy. To begin with, social contract theory is a mechanism under which individuals give away their rights to some higher authority and in return expect the authority to protect their freedoms and liberties.

In Leviathan, Hobbes envisaged a hypothetical world called ‘The State of Nature’ which is quite a brutal and nasty place to live in. The reason why Hobbes had such a pessimistic view is because in the State of Nature, men would be driven by self-interest, self-preservation and felicity. They will be equal to one another and the resources would be limited. The result of this condition would be that, in the absence of any sovereign authority, there would be  a consistent state of conflict. However, men being rational creatures would find a way out of this violent world and would create a civil society by coming under a social contract. The social contract, according to Hobbes comprise of two essential features:

  1. Mutually renouncing rights against one another and striking peace.

  2. One supreme individual would command all the power and authority.

Another theorist of social contract John Locke differed from Hobbes and his State of Nature theory and proposed the idea of social contract that was based on liberty and an understanding that no one should harm others with regards to their “life, health or possession”. Morality was the key ingredient in Locke’s idea of society. Locke said that in the State of Nature, the morally bound individual with the Law of Nature would not harm others. The citizens that would come together in the social contract would delegate a member to the government to protect their rights, freedoms and liberties.

Jean-Jacques Rousseau’s idea of social contract was based on the notion of a society in which the individuals would submit their individual will to the general will for the betterment of the society. Self preservation and compassion were the two cornerstones of Rousseau’s idea of society. His social contract theory advocated the formation of a political community where people were powerful and the sovereignty laid with the people. The general will of the people was the guiding principle.

Social Contract Theorists laid down the basic ideas of democratic form of governance. While Hobbes gave the idea of an absolute powerful sovereign at commanding all the authority, Locke and Rousseau, not being too pessimistic gave the idea of preserving liberties and popular sovereignty respectively.

J S Mill, one of the most profound democracy theorists, argued that the representative form of government is the best form of government. Mill observed: 

“There is no difficulty in showing that the ideally best form of government is that in which the sovereignty or supreme controlling power in the last resort is vested in the aggregate of community.”

Hence from the above arguments by various political philosophers, we can conclude that democracy is a valued idea in the modern times. It may not be the best form of government but it is certainly better than other forms of government. The idea of universal adult franchise has further entrenched the democratic ideals over the years, across the world and especially in India.

That democracy is premised on majoritarianism, this criticism has always been made by the critics of democracy. The idea of Constitutionalism is a counter majoritarian notion. Constitutionalism is a mechanism or a framework that consists of rules or norms that provides checks and balances to the majoritarian tendencies of a democracy. It is an idea associated with the limitations provided by either a written proclamation, like a constitution or an arm of the government, to the majoritarian excesses of the state, in-order to safeguard individual rights and liberties.

In other words we can also say that Constitutionalism is a notion under which the function and the decision of the government must be in compliance with the provisions of the Constitution of that country.

The idea of Constitutionalism in India has helped in the entrenchment of democratic credentials. It has not only protected the fundamental rights but has also helped in preserving the basic structure of our constitution.

Part 2:

In this part we will discuss about the facets of Indian Constitutionalism under following sub-headings:

  1. Basic Structure Doctrine

  2. Judicial review

  3. Separation of Powers

Basic Structure Doctrine: Article 245 of Indian constitution empowers the Parliament to make laws and Article 368 gives the provision of the amendment. This power of amendment can only be exercised through a two-thirds majority of both the houses and in few exceptional cases it needs the consent of half of the State legislature. The ambiguity in Article 368 is that it does not tell anything about the scope of amending power. This ambiguity turned out to be the reason for the persistent tussle of supremacy between legislature and judiciary.

The most contentious issue revolving around this article was that it was not clear up to what extent can Parliament amend the Constitution. Can the parliament change the very basic nature of the constitution by expunging or adding a provision to it? Can the parliament pass a law to make India a theocratic country? Are there no checks to the amending power of the Constitution by the legislature, just because Article 368 says so?

The landmark judgment of Kesavananda Bharati v State of Kerala case in 1973 gave the answer to the above question in the negative. The verdict said that the parliament can only amend the Constitution to an extent that it did not “damage or destroy the basic structure of the Constitution”. The Court also added that henceforth all the Constitutional amendments are subjected to judicial review i.e. the Court would check Constitutional validity of the amendments.

The respondents, on the other hand, claim an unlimited power for the amending body. It is claimed that it has the full constituent power which a legal sovereign can exercise provided the conditions laid down in Article 368 are satisfied. The content and amplitude of the power is so wide that, if it is so desired, all rights contained in Part III (Fundamental Rights) such as freedom of speech and expression; the freedom to form associations or unions and the various other freedoms guaranteed by Article 19(1) as also the right to freedom of religion as contained in Articles 25 to 28 together with the protection of interests of minorities (to mention the most prominent ones) can be abrogated and taken away. Similarly, Article 32 which confers the right to move this Court, if any fundamental right is breached, can be repealed or abrogated. The directive principles in Part IV can be altered drastically or even abrogated. It is claimed that democracy can be replaced by any other form of government which may be wholly undemocratic, the federal structure can be replaced by a unitary system by abolishing all the States and the right of judicial review can be completely taken away. Even the Preamble which declares that the People of India gave to themselves the Constitution, to constitute India into a Sovereign Democratic Republic for securing the great objectives mentioned therein can be amended; indeed it can be completely repealed. Thus, according to the respondents, short of total abrogation or repeal of the Constitution, the amending body is omnipotent under Article 368 and the Constitution can, at any point of time, be amended by way of variation, addition or repeal so long as no vacuum is left in the governance of the country.

-Kesavanandan Bharti versus State of Kerala

The history of the basic structure doctrine can be traced to the Shankari Prasad v Union of India case and Sajjan Singh v State of Rajasthan case. In both these cases the petition argued that the amendments should be regarded as laws and if the amendments encroach upon the Fundamental Rights of the aggrieved party or if the amendments are insulated from judicial review, the court should intervene. However the Supreme Court rejected their arguments.

It was in 1967, in the famous case of I C Golaknath v State of Punjab that the Supreme Court ruled that the amendments henceforth would be regarded as “laws” within the meaning of article 13. The Court also declared that the Parliament has no power to amend any provision to amend any provision in Part 3 of the Constitution, dealing with the fundamental rights.

Kesavanadan Bharati case overruled the Golak Nath judgment. However the most significant contribution of the judgment was the “Basic Structure Doctrine”.

Here it is very essential to understand the salient features of the basic structure of the Constitution which is considered sacrosanct. Apart from secularism, rule of law, judicial review, separation of power, the Indira Gandhi v Raj Narain judgment in the year 1975, made Justice Chandrchud observe this: 

“I consider it beyond the pale of reasonable controversy that if there be any unamendable features of the Constitution on the score that they form a part of the basic structure of the Constitution, they are:

  1. India is a Sovereign democratic  republic

  2. Equality of status and opportunity shall be secured to all its citizens.

  3. The state shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

  4. The nation shall be governed by a government of laws and not men.

In a nutshell we can say that the basic structure doctrine has prevented the Parliament from changing the nature of the Constitution and specially the provisions of the fundamental rights.

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Judicial Review: The philosophical roots of the judicial review can be traced to the famous case of William Marbury v James Madison in the US in 1803 which gave power to the Supreme Court of US to limit the power of the Congress by declaring legislation unconstitutional if it does not comply with the provisions of American constitution.

In 1951, the then Prime Minister Jawaharlal Nehru inserted the 9th schedule into the Constitution, which insulated the land reform legislation to come under judicial scrutiny. The misuse of the schedule since its inception can be gauged from the fact that the members of the executive tried to insert those provisions into the schedule which were not even remotely connected to the land reforms.

However the Kesavanadan Bharati judgment has quite clearly laid down the guidelines of judicial review. Gautam Bhatia writes, “By subjecting Constitutional amendments to judicial review, the Court essentially placed a substantive non-legislative check upon the Parliament’s amending power.”

There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so predominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United Constitution, it envisages such a separation to a degree as was found in Ranasinghe's case. The judicial review provided expressly in our Constitution by means of Article 226 and 32 is one of the features upon which hinges the system of checks and balances.

-Kesavanandan Bharti versus State of Kerala

The Supreme Court in the I R Coelho v State of Tamil Nadu case ruled that the laws can be added to the Ninth schedule, but if any individual or party would approach Court under article 32 for the enforcement of Fundamental Rights then the provisions inserted into the Ninth schedule would have to pass the test of Fundamental Rights. If the Court finds the legislation against the provision of the Constitution, it can declare it void.

Separation of Powers: As argued earlier, Constitutionalism can very effectively counter the majoritarian tendencies of the government. The doctrine of division of power comprises the mutual relation of the three wings of the government- legislature, executive and judiciary amongst each other. The French legal scholar Montesquieu was the first person who devised this framework in his book “Spirit of Laws” in 1748. The Federalist papers also established their arguments for separation of power from the writings of Montesquieu.

Montesquieu argued that all the three powers of the government-legislature, executive and judiciary should not be vested on a single person or entity. Each organ of the government should work freely within their own ambit and should not encroach on the other spheres. However a closer reading of Montesquieu will help us understand that he never advocated strict barriers between the three wings. He argued that the three arms of the government should act as “checks and balances” for each other.

In India the separation of powers is not very strict but the different organs of the government are given enough space by the constitutional provisions that one organ does not cross the mandate and seize the function of the other. Prof K T Shah, one of the members of the Constituent Assembly was in favor of the doctrine of separation of powers that would strictly separate the powers of legislature, executive and judiciary. However K Hanumanthaiah and Dr B R Ambedkar, one of the chief architects of Indian constitution, dissented Shah’s proposal.

There is no dispute whatsoever that the executive should be separated from the judiciary. With regard to the separation of the executive from the legislature, it is true that such a separation does exist in the Constitution of the US; but many Americans themselves were quite dissatisfied with the rigid separation embodied in the American constitution between executive and legislature.

The work of the Parliament is so complicated that unless and until the members of the legislature receive direct guidance and initiative from the members of the executive, sitting in the Parliament, it would be very difficult for members of Parliament to carry on the work of the legislature.

-Dr B R Ambedkar

Separation of powers between the legislature, the executive and the judiciary is a part of the basic structure of the Constitution; this structure cannot be destroyed by any form of amendment.

-Justice Sikri is Kesavanandan Bharti judgement

To sum up we can say that the idea of Constitutionalism acts as a bulwark to the democratic framework of India. The checks and balances given by our constitution has not only helped safeguard our fundamental rights from being encroached by a majoritarian regime but it has also helped in preserving the secular credentials of the country as in the cases of Bommai and Aruna Roy. The present trend of the Court of interpreting the State directive principles as fundamental right of Article 21 has been instrumental in laying the guidelines of several rights-based entitlement schemes in India. One can only say that the Constitutionalism in India along with the Constitution and courts has materialized the age old adage:

“Laws cannot remain silent when the cannons roar”.

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