Constitution sets the limits

A WRITTEN Constitution is the primary source of authority within a state. In this fundamental law lies the explanation of the legislature's power to make laws, the executive's power to govern and administer, and the judiciary's power to adjudicate. The Constitution, in other words, limits by express rules, the powers of the legislature, executive and the judiciary. For a successful working of the democratic government, all the three constituents shall therefore function within the framework of the Constitution.

The Supreme Court (through Justice Bhagawati) restated the above fundamental principle thus: ``Every organ of the Government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of authority.'' Neither the legislature nor the executive nor for that matter, the judiciary therefore can act outside the confines of the power conferred on them by the Constitution. The observation of Justice Frankfurter that ``the ultimate touchstone of constitutionality is the Constitution itself and not what we have stated about it,'' is relevant in the context.

Our Constitution, as in the case of any written Constitution, reflects the details of the powers conferred on the three organs by the sovereign, i.e. the people. The expression, ``We the people,'' in the preamble, confirms that the people of this country and not the institutions of the Government created by the Constitution, are sovereign. No institution of the Government therefore can claim that it is the sovereign itself. This principle has lucidly been stated by Wills thus: ``The power that can make and, unmake the Constitution is sovereign rather than the Constitution which it may make.'' Hence neither the legislature nor the executive nor the judiciary can take up the role of the sovereign and act, ignoring the limitations imposed by the Constitution. They cannot defy the prescriptions and act as they please. If they do so, their actions will be contrary to the Constitution.

The sovereign, no doubt, has empowered the judiciary to review the actions of the legislature and the executive, and, if the actions are found unconstitutional, the judiciary has the power to declare and decree that such activities shall not affect the rights of the aggrieved person or persons. The sovereign, it would appear, was confident that the judiciary would not cross the limits imposed by the Constitution and therefore did not constitute any authority, competent to declare the actions or decisions of courts as unconstitutional. These constitutional arrangements worked well for about two decades and a half, since the people of India inaugurated the Constitution on January 26, 1950.

The birth of judicial activism, in 1973, gave a severe jolt to the above constitutional arrangements. Parliament got the first shock when it was told by the Supreme Court that Article 368 did not empower it to change `the basic structure' of the Constitution.

Article 368 reflects the delegation by the people of their sovereign power to modify the Constitution by amendment or incorporation of new clauses reflecting their changed objectives and aspirations. In other words, the sovereign by Article 368 has empowered Parliament to amend the Constitution as and when the necessity arose.

Article 368 is in general terms and therefore can amend any provision and also incorporate any new provision in the Constitution. Taking note of this salient feature of the constituent power, the Supreme Court as early as 1951 in the case of Shankari Prasad declared the law thus: ``No doubt, our Constitution-makers have incorporated certain fundamental rights in part II and made them immune from interference by laws made by the State. We find it, however, difficult in the absence of a clear indication to the contrary, to suppose that, they also intended to make those rights immune from constitutional amendment. On the other hand, the terms of Article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatsoever.'' This statement of law is consistent with the views of the founders of the Constitution. According to the founders, the Constitution shall not be rigid and permanent, not to be changed at all. Pandit Nehru said, ``in any event we could not make the Constitution so rigid, that it cannot be adopted to changing conditions. When the world is in turmoil, and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow.''

This approach is consistent with the Vedantic approach to the issue. The Constitution belongs to that category of Dharma called `Yugadharma' - a Dharma, expounded by Smrithi, relevant to a particular period of time for a particular society - and so can be altered or abolished. Smrithis come and go. We had in the past Manu Smrithi, Yagnavalkya Smrithi, Narada Smrithi and so on.

These Smrithis became obsolete and irrelevant, when we adopted our Constitution in 1950. No Smrithi can go against the Constitution. It is thus clear that the constitution, like a Smrithi is liable to undergo changes to meet the requirements of the time.

Touching upon this aspect Swami Ranganathananda, Chief of the Ramakrishna Order, said: ``Therefore, we have now got another Smrithi namely, our Constitution: it is like a Smrithi, which we can change, amend and alter, being a human contribution, made in response to the changing conditions of society with a view to making human life better and better.''

The apex court, however, later ruled that Parliament has no power to amend the Constitution, if the amendment is to interfere with the basic structure of the Constitution. ``Basic structure'' is not defined, though the expression has been explained by different judges in different manner; for instance, ``basic framework'', ``edifice of the Constitution'', ``pillars of Constitution philosophy'', etc. Whether or not an amendment would interfere with the basic structure, solely depends on the subjective view of the judge. Such subjective views would be counter majoritarian, i.e. inconsistent with the view of the people, the sovereign, who has enacted Article 368 conferring constituent power on Parliament to amend the Constitution.

Some Judges of the Indian courts however do not concur with the ``basic structure'' view of the Supreme Court, Justice Bachawat observed. ``Such a naked power to amend the Constitution is not given to judges.'' It is worth-noting here the timeless truth stated by the first Chief Justice of India, Justice Kania.

He said, ``but it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of courts of justice, to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary, powers too great and too indefinite, either for its own security or the protection of private right.''

Political controversy

By assuming the extraordinary jurisdiction, the judiciary has got itself embroiled in the turbulent waters of political controversy. Not only that, the judiciary has taken up the role of the sovereign itself. In exercise of this expanded and omnipotent and omnipresent jurisdiction, the judiciary has also trespassed on fields of activity allotted to the other two wings of the Government, by the Constitution. Even the most creative of English Judges, Lord Denning, has disapproved of the trespass. He says, ``So far as creative work is concerned, so far as active policy is concerned, there the Judges have no hand.

They cannot do anything to help the poor or unemployed. They cannot provide housing for the homeless. All social reform must be left to others. So must all political reforms.'' And in the same strain Justice Diplock has said, ``Whilst I should be last - or sitting in this court perhaps the last but one - to say that it is no part of the function of the courts to develop the common law so as to adapt it to changing social conditions, it is no part of its function to provide solutions to sociological problems which call for administrative action by the Central or local Governments.''

The founding fathers of the Constitution were not prepared to confer on the judiciary any sovereign power, and that is why they deliberately avoided the use of the expression ``due process of law'' in the Constitution, which expression, according to Glanville Austine, would have given courts enormous powers even over political activities and allowed the subjective views of the judges to prevail over the legislative will.

That the founding fathers were not prepared to entrust the judiciary with so much powers is clear from the following excerpts from the speech of Pandit Nehru in the Constituent Assembly. ``Within limits no judge and no Supreme Court can make itself a third Chamber.

No Supreme Court and Judiciary can stand in judgment over the sovereign will of Parliament, representing the entire will of the community.'' Courts, nonetheless, have to a considerable extent amended and re-written the constitutional provision imposing restrictions on their authority. Accordingly the American doctrine of ``due process of law'' is substituted in the place of the democratic doctrine of ``according to procedure established by law.''

The Supreme Court in Rajan Dwivedi case, has clearly admitted this. Vide ``the substance of the American doctrine of the process has been introduced in the conservative text of Article 21 of the Constitution.''

Verdicts made in exercise of the expanded jurisdiction therefore are more in the nature of the subjective view expressed by the courts, and without constitutional support.

A question immediately would arise. How to implement or enforce the commands or directions contained in such verdicts, in case they are defied. Commands or directions of courts are usually respected and implemented because failure to obey them would result in the imposition of punishment for contempt. This principle sounds good, so far as the verdicts are lawful. But what about the verdicts which do not exist in the eye of law as they are unconstitutional. Disobedience thereto, therefore may not constitute the offence of contempt of court. The Constitution has not constituted any authority. The court also cannot take any decision in this regard because the court will be biased. It is interesting in this context to note the law declared by the Supreme Court, though in another situation, namely, ``no one howsoever highly placed and no authority, howsoever lofty, can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the powers of the Constitution laid down by the Constitution.''

These verdicts therefore shall remain unenforceable. The authority which ordinarily is bound to obey the commands can effectively raise such questions and circumvent even the orders or directions issued in cases where apparently, no such question arises. We shall remember that the courts cannot enforce an order directly because the judiciary has no machinery or institutional means of its own to supervise and implement its orders. To put it differently the judiciary simply is not having either the legislative or administrative power. Even the order punishing the condemnor would therefore be ineffective. In these circumstances, ``judicial activism'' even in the field of human rights and civil liberties will become a mirage. By expanding its interpretative jurisdiction, the judiciary, according to constitutional experts, has assumed the role of the sovereign. The remarks of F. S. Nariman is telling. He says, ``in asserting the basic structure theory the Supreme Court has in this sense asserted political power - in the guise of judicial interpretation... By propounding it the guardians of the Constitution have in one bond become the guardians over the Constitution. Constitution adjudicators have assumed the role of constitutional governors.''

If the other two wings of the Government, the legislature and the executive are also to expand their powers, ignoring the limitations prescribed by the Constitution, like the judiciary, the result will be an impasse.

If that happens, and ere long that may happen, unless the three institutions strictly confine their activities to their respective fields of activity, recognised under the Constitution, democracy, which the people of India have voted for, would become a mockery and get metamorphosed into mobocracy; And our Constitution, which is the express embodiment of the ``rule of law,'' will cease to be the fundamental law of the country.

To forestall the happenings, the sovereign, i.e., the people, may have to step in and restructure the Constitution. The Central Government already has a proposal in this regard. The convening of another constituent assembly for this purpose however, is not feasible.

There can, therefore, be a debate on these matters first; the provisions may be formulated and placed before the people for their approval. In other words, a referendum may be held and if the people approve the provisions, they will automatically form part of the Constitution. This mode of restructuring has become necessary in view of the law stated by the Supreme Court that Parliament under Article 368 cannot amend the basic structure of the Constitution.

Justice K. P. RADHAKRISHNA MENON

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