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TWO recent judgments, one by the Supreme Court and the other by a single Judge of the Allahabad High Court, have set the alarm bells ringing in the corridors of power. They have led to the reopening of the debate on the limits to which the judiciary can go in questioning and striking down the administrative decisions of a government. In one instance, the Supreme Court halted the unseemly hurry of the Human Resource Development Ministry to implement a 27 per cent reservation for Other Backward Classes (OBCs) in higher educational institutions such as the Indian Institutes of Technology and the Indian Institutes of Management. In the other, Justice S.N. Srivastava of the Allahabad High Court ruled categorically that Muslims in Uttar Pradesh were not entitled to the current minority status. Coming as it did on the eve of the Assembly elections in the State, this was a bombshell whose impact could have been colossal. The decision has since been stayed by a larger Bench of the same High Court. Both were monumental orders that set the cat among the pigeons.
Prime Minister Manmohan Singh was, therefore, not speaking out of turn when he told a meeting of Chief Ministers and Law Ministers on April 8 that judicial activism did not warrant an `over-reach'. Speaking minutes before this at the same venue, Chief Justice K.G. Balakrishnan warned against "irresponsible criticism" of the judiciary and said it could cause "incalculable damage" to the institution. The two men, known for their balance and their melodiously soft tone, could not have delineated their diametrically opposite stands with greater clarity.
In an ambience where vote-bank politics increasingly determines administrative moves, conflicts such as these are likely to increase and become more strident. While the legislature and the executive will assert their autonomy in shrill terms, the judiciary may not lag behind in attempting to bridle executive exuberance. Hair-splitting interpretations of the Constitution will become the order of the day, much to the delight of pundits looking for meat for their highfalutin speeches and columns.
I expect that the letter of the Constitution of India, more than its spirit, will figure most in the debates to come. The OBC reservation issue is oxygen to many political parties, and they could be expected to challenge the right of courts to review decisions on such issues, which are touted as constituting the backbone of social justice. In defence of such controversial measures, quibbling over words should be an attractive proposition for the politician who must placate his large constituency; interesting days lie ahead.
It is in this context that scholarly commentaries on our Constitution such as those of Madras High Court lawyer Arvind P. Datar assume great significance. Spread over three volumes, the painstaking work - a follow-up to a one-volume commentary - is a great contribution in a field otherwise crowded with treatises of dubious quality.
The dynamics of the setting in which the Constitution functions renders even the most ponderous evaluation extremely tricky and superficial. The oft-heard criticism against the document that B.R. Ambedkar and company gave us 60 years ago is that too many amendments have been brought into effect too soon and this was proof that it was a poorly drafted document. I am not convinced that this is a wholly tenable argument in an ever-changing world. Each amendment has to be considered on its own merit for pronouncing any value judgement. By this token, many amendments have fortified the unity-in-diversity aspect of the Indian Union and conferred on sections of population that hardly counted in the early years of the Republic.
What impresses me more is that beneath all the reservations of commentators is a flourishing faith in the strong roots of the Indian state, which goes by the name of rule of law. If one institution has to be complimented for this, it is the judiciary. Articles 32 (right to move the Supreme Court for enforcement of fundamental rights) and 226 (power of High Courts to issue certain writs) are the cornerstones of an edifice that is gaining strength, thanks to the courage and willingness of upright judges, both in New Delhi and in the States to pull up errant and overstepping administrations.
Datar cites several decisions to draw the contours of the Supreme Court's authority under Article 32 to undo a breach of any fundamental rights. It is not the validity of an enactment that attracts the court here. It is the abridgement or total denial of a right guaranteed by the Constitution that is the Court's concern. The scope of judicial review is well brought out by Datar.
"Unless expressly excluded by the Constitution itself, the power of judicial review will always be available," wrote Datar even before the Supreme Court ruled in January this year that laws placed in the Ninth Schedule were subject to judicial review if they violated fundamental rights. In spite of this, he seems generally satisfied with the way this power has been employed.
Remarkably, he does not hesitate to criticise the Supreme Court's conclusions when he believes thay are wrong. For example, he refers to an instance when the Supreme Court gave what, according to him, was one of its "most shocking decisions."
The reference is to Antulay A.R. v. R.S. Nayak AIR 1988 SC 1531, wherein a five-Judge Bench held that a decision of the Supreme Court could be set aside under Article 32 if it was contrary to fundamental rights or was violative of the principles of natural justice. This in effect, would mean that once an error is detected, it cannot be perpetuated and quick remedial action is warranted. In Datar's view, this per se is not erroneous. What he questions, however, is five Judges striking down a decision of a nine-Judge Bench. Datar believes that the right course would have been for the smaller Bench to place the papers before the Chief Justice and request him to refer the matter to an even larger Bench. Possibly, the last word has not been said on this important issue.
The whole edifice of the concept of rule of law undoubtedly rests on Article 141. ("The law declared by the Supreme Court shall be binding on all courts within the territory of India.") This important subject receives exhaustive treatment from Datar. Article 141 vests in the Supreme Court enormous and sweeping powers. At the same time, the constitutional expectation is that such authority will be exercised with a sense of responsibility and clarity. There is no scope here for overzealousness or vagueness, which could lead to a miscarriage of justice. Above all, there is need for consistency and certainty. Courts are certainly bound by stare decisis (to stand by decided cases). At the same time, precedence cannot be allowed to operate as tyranny against fresh thinking in the context of new ideas and developments. In sum, because of the power of judicial review, the Supreme Court has the sacred duty of eternal vigilance against executive arbitrariness whenever this conduct erodes or threatens to erode a citizen's fundamental rights. These ideas come out clearly in the numerous cases cited by Datar.
The importance of Article 368 (power of Parliament to amend the Constitution and procedure therefor) can hardly be overstated. It is nearly the jewel in the crown that has to be protected at all costs. Yet, there have been attempts to tinker with it, fortunately with only limited success. Two landmark cases will be cited for many years to come.
First is the Golaknath case (1967), which established that Parliament's power to amend the Constitution was not absolute. The next was the Kesavananda Bharti case (1973), which held that even such fettered authority could not be exercised in such a manner that it destroyed the `basic structure' of the Constitution. This was further amplified in the Minerva Mills case (1980) in which the court specified that the rights embodied in Articles 14 to 19 were part of the inviolable `basic structure'.
Datar draws from the debates of the Constituent Assembly, where some members felt that the procedure to amend the Constitution was unduly tight. Ambedkar felt otherwise and highlighted the wisdom of prescribing a two-thirds majority to take care of a time when partisanship overtook a consideration for the nation's good. In the context of what we have gone through in the past few decades in the form of shoddy politics, Datar salutes his prescience.
The three volumes will serve as excellent reference to students as well as practitioners. I am especially impressed with the collection of appendices in the final volume. This includes laws made under British India, the current rules framed by High Courts and the text of some foreign Constitutions. A thoughtful inclusion is a summary of the recommendations of the M.N. Venkatachaliah Committee, which reviewed the working of the Constitution.
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