Putting the executive in its place

B.P. Jeevan Reddy

The Hindu , March 6,2008

If the government ignores the will of Parliament and proceeds to finalise the Indo-U.S. nuclear deal, it would mean the executive is asserting its supremacy over Parliament – an unacceptable situation, constitutionally speaking.

A basic premise of the parliamentary system of government is the supremacy of Parliament. The executive — the political executive — is drawn from and is a part of Parliament. It is not independently elected.

While Parliament can override the executive will, the converse is not, and cannot be, true. India has adopted the parliamentary form of government both at the Centre and the States.

The Constitution is not exhaustive of the constitutional system prevailing in our country; conventions are a part of and constitute an essential component of the system. This is a proposition no student of constitutional law would dispute. In many respects, the Constitution is silent and the silences are filled by the conventions. Just as we have borrowed the parliamentary system of government from the United Kingdom, so have we borrowed its conventions too — with appropriate adaptations, of course.

By way of illustration, there is no provision in the Constitution requiring the President to invite the leader of the single largest party in the Lok Sabha to form a government. Article 75(1) merely says: “The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.”

Literally read, the President can as well invite the leader of the second largest party and give him or her sufficient time to cobble up a working majority by one or another means. It is the convention that obligates the President to invite the leader of the single largest party or the single largest pre-election formation to form a government and no President will dare to violate this convention.

Another instance: Prior to amendment of clause (1) of Article 74 by the Constitution (Forty Second) Amendment Act, the Constitution did not say in so many words that the President is bound to act in accordance with the advice tendered to him by the Council of Ministers with the Prime Minister at its head. Literally read, the clause enables the President to ignore such advice and act in his discretion. But soon after the commencement of the Constitution, when a doubt was raised on this point, it was made clear to the President by the highest legal functionary of the state — which he gracefully accepted — that since India has adopted the British parliamentary system and conventions, the President is bound by, and is bound to act in accordance with, such advice. There was never any departure from this convention. Of course, the 42nd Constitutional Amendment Act, 1976 expressly incorporated this convention in the Constitution. Even without this amendment, it is clear, the position would be the same. The decisions of the Supreme Court in 1955 (Ram Jawaya Kapur) and 1974 (Shamsher Singh) make it clear that we have borrowed the British parliamentary system, with all that goes with it.
Negation of concept

On the Indo-U.S. nuclear deal, a substantial majority of Parliament has made its position clear: it is opposed to the deal in the present form, particularly because of the governing provisions of the Hyde Act passed by U.S. Congress. The question is not whether the majority is right — or whether the government is not right. The political executive cannot sit in judgment over the wisdom, or the motives, of the majority in Parliament; it has to abide by it. Otherwise, it would be a clear negation of the very concept of parliamentary form of government.

If the executive (the Government of India) ignores the will of Parliament and proceeds to finalise the deal, it would mean the executive is asserting its supremacy over Parliament — an unacceptable situation, constitutionally speaking. On the other hand, every action of the executive can be reviewed by Parliament; no act of the executive is immune from legislative oversight. To assert the contrary is to undermine the very concept of the accountability of the executive to Parliament [recognised in Article 75(3)] as also the concept of parliamentary supremacy over the executive. A situation should not be allowed to develop where the majority in Parliament is driven to pass a resolution disapproving the nuclear deal, which may compel the government to tender its resignation.

It is true that under our constitutional system — again following British practice — it is for the government of the day to enter into treaties with foreign powers and that there is no provision for approval or ratification of such treaties by Parliament or by either of its Houses. But under our Constitution, it is not an unquestionable right of the executive. It can be controlled and regulated by our Parliament by making a law as contemplated by Entry 14 of the Union List in the Seventh Schedule to the Constitution.

It is true that Parliament has not so far made any law with reference to this Entry laying down the parameters of and/or laying down the manner in which this power has to be exercised. Our Parliament has chosen not to act in the matter despite the experience of the Uruguay Round of GATT Treaties — in particular, the Agreement on TRIPS (Trade-Related Intellectual Property Rights) where the executive signed the agreement containing provisions directly contrary to the recommendations of a parliamentary committee of 40 members drawn from all parties.

But all this does not mean that when a substantial majority in both the Houses expresses itself unambiguously against this particular agreement signed by the government, the latter is entitled to ignore Parliament’s will and go ahead and finalise the deal — as it is made to appear from recent statements emanating from governmental circles. It is not really necessary to go into the question whether the agreement entered into between India and the U.S. on civilian nuclear cooperation amounts to a ‘treaty’ or whether it is a mere ‘agreement.’ Whether it is a treaty or a mere agreement, the action of the government entering into it is not — and cannot be — outside the purview of Parliament. It is also not a question of procedure, namely under which rule of the House Parliament expressed its intention. It is a matter of substance and of democratic ethos and political morality.
Wrong precedent

That Parliament has expressed its will in unambiguous terms is enough. If the Government of India yet proposes to proceed to finalise the 123 agreement, it would be a wrong, and an unhealthy, nay, an undemocratic, step and would amount to laying down a wrong precedent for the future governments to follow. The Preamble to our Constitution speaks of the resolve of the people of India to constitute India into a “Democratic Republic” among other requisites. It is Parliament that represents the will of the people — not the executive, which is only a part of Parliament. It is inconceivable that a part can defy the whole.

A passing thought: if the foreign policy of a country is meant to subserve the interests of that state — and not be an exercise in charity — one finds it amusing to see hordes of incumbent and former officials of the U.S. government descending on India to persuade, cajole, advise, and threaten us into finalising the djavascript:void(0)
Publish Posteal at the earliest.

(Justice B. P. Jeevan Reddy is a former Judge of the Supreme Court of India and a former Chairman of the Law Commission of India.)

Constitutionalism and judicial governance

The judiciary’s effort to infuse accountability in the functioning of government institutions and the growth and development of human rights jurisprudence have demonstrated the importance of judicial governance.

C. Raj Kumar ,HINDU EDITORIAL PAGE OCTOBER 18,2007

When the Constitution of India was adopted on November 26, 1949 by the Constituent Assembly, its members were mindful of the challenges of governance. Speaking after the completion of his work, Dr. B.R. Ambedkar, Chairman of the Constitution Drafting Committee, said: “I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.” The members also recognised that the mere adoption of a good Constitution would not culminate in the values of constitutionalism permeating the civil and political culture in the country, nor could it ensure good governance.

Yet there were great expectations that in the years to come, the Constitution would move from a document worthy of admiration to a solid commitment on the part of power holders. It is this ability of Constitutions to act as limitations on the exercise of power, and in that process delineate the functions of the government and outline the rights of the people, that distinguishes them from other legislation. The experience of 60 years of constitutional governance helps us understand the working of the Constitution in general and the role of the judiciary in particular.

Constitutional historian Granville Austin said the transcendent goal of the Indian Constitution was to promote “social revolution.” For this, the framers intended to fulfil the basic needs of citizens, and hoped that it would bring about fundamental changes in the structure of Indian society. The theme of social revolution runs throughout the proceedings and documents of the Constituent Assembly. This theme formed the basis of the decision to adopt the parliamentary form of government and direct elections, the fundamental rights, the directive principles of state policy, and many of the executive, legislative, and judicial provisions of the Constitution. Although the social revolution theme was espoused throughout the Constitution, Parts III and IV — fundamental rights and directive principles of state policy — demonstrate the core of this commitment. These are perceived as the conscience of the Constitution, because they provide the base for human rights and human development policies for governance. The Constitution ensures that the fundamental rights are guaranteed as a matter of legal obligation rather than as a political concession. These are basic human rights and have been interpreted as civil, political, economic, social and cultural rights. Articles 12-35 of Part III elaborate on the fundamental rights. Articles 36-51 outline the framers’ vision for good governance and they constitute the directive principles of state policy. They are not enforceable in a court of law, but the principles laid down therein are fundamental to governance. It is the duty of the state to apply these principles in making and implementing laws.

The dialectical relationship between promoting constitutionalism and the development of judicial governance presents three important challenges for understanding the role of law and institutional politics in India:

Role of the judiciary: The judiciary is uniquely placed in the matrix of power structure within the system of governance. Judges are not elected but clearly have the power and indeed the responsibility to check the exercise of powers and actions of elected representatives and appointed officials. The judiciary as an institution is vastly respected, notwithstanding huge challenges in ensuring access to justice, judicial process and issues of transparency and accountability. It is vested with ensuring that the rights and freedoms of the people are protected and the powers exercised by the government in adopting policies are in accordance with the Constitution and other legislation.

In theory, if the different branches of the government adhere to the basic principle of separation of powers and function within their limits, it is considered a sound system of governance. In practice, however, a number of issues have emerged and challenges occurred. It is in this context that the three branches of the government — the legislature, the executive and the judiciary — need to have a certain degree of trust in, and deference to, the actions of one another in matters within their respective jurisdictions.

However, trust and deference in relation to the actions of a particular branch should not undermine the judiciary’s responsibility to adjudicate on the constitutional and legislative validity of the actions of the government. Clearly, this delicate balancing act of rightfully intervening when necessary requires a deeper understanding and appreciation of the principles of constitutionalism. Rule of law is about all people and institutions respecting laws and acting in accordance with the law. The legislature and the executive as collective powerhouses are bound by these principles as much as ordinary citizens are.

Judicial governance: The term ‘judicial governance’ in itself is subject to challenge as the judiciary is not supposed to be involved in ‘governance’. However, the effort of the Indian judiciary to infuse accountability in the functioning of government institutions, and the growth and development of human rights jurisprudence have demonstrated the central importance of judicial governance. Of course, there is no doubt that it has posed critical challenges to parliamentary accountability and executive powers and, more important, reinforced the need for improving efficiency and effectiveness of governmental institutions.

The need for social reform preceded the Constituent Assembly bestowing on the judiciary the role of guardian of individual rights. Hence, the protection of liberties within the constitutional framework needed to be balanced with achieving social reform. The Supreme Court perceived itself to be an institutional guardian of individual liberties against political aggression. In that process, it went beyond the framers’ vision of achieving an immediate social revolution. It took upon itself a role similar to that of the United States Supreme Court as defined by Chief Justice Marshall in Marbury vs. Madison (1803). This perception led the court to develop implied limitations on the powers of the political branch that is analogous to the U.S. judiciary’s approach to the separation of powers. The best known of these implied limitations, the ‘basic features limitation’, precludes the Indian Parliament from amending the Constitution in such a way as to displace its basic features.

Civil society expectations: Legal provisions relating to human rights as a normative framework provide little guidance and help for the masses in India who are aspiring to fulfil their basic rights, in particular their right to acquire and experience the basic needs of survival and existence. The civil society seeks to enforce good governance so that all human rights are promoted and protected. It is imperative for the Indian society to work towards internalising the values of constitutionalism so that the exercise of all powers is subject to accountability.

Undoubtedly, the wider civil society has embraced the notion of judicial governance, given the fact that it provides certain social expectations for creating accountability. The relaxation of the rules of locus standi; recognition of a range of human rights under the “right to life” provision of the Constitution, and the development of public interest litigation are important milestones in meeting civil society expectations on the working of the judiciary.

However, given the range of injustices in our society, institutional responses, including that of the judiciary, need to be further expanded. The Indian experience has demonstrated that the initial judicial recognition of human rights has culminated in the passage of an amendment, which guarantees the fundamental right to education.

If democracy is to become meaningful in India, it should be based on two important factors: enforcement of the rule of law and the reform of the political system – each dwelling upon the other. The judiciary is well suited to support both these initiatives.

(C. Raj Kumar is Associate Professor of Law at City University of Hong Kong and Honorary Consultant to the National Human Rights Commission in India. Email: crajkumar4@yahoo.com)

Basic structure of the Constitution revisited

Basic structure of the Constitution revisited

T.R. Andhyarujina ,The Hindu May 21,2007

The basic structure theory plays a useful part in our constitutional jurisprudence. But was there truly a judicial formulation by the Supreme Court of India of the basic structure doctrine in the Kesavananda Bharati case? An insider's unravelling of a fascinating story.

THIRTY-FOUR years ago, on April 24, 1973, thirteen judges of the Supreme Court assembled in the Chief Justice's court packed to its capacity with lawyers and laypersons. They delivered eleven judgments in India's most celebrated case in constitutional law — the Kesavananda Bharati case. For over three decades we have believed that in that case a majority of judges decided that Parliament has no power to amend the basic structure of the Constitution.

Revelations of how the Kesavananda case was decided have been disclosed in later interviews with those who were involved in the case, writings of scholars, and by a revealing autobiography of Justice Jaganmohan Reddy, one of the judges in that case. This writer, a counsel in the case, kept detailed notes of the proceedings of the case. We can now piece together a collated account of how the case was decided. At the end of it, the question arises — was there truly a judicial formulation of the theory of basic structure in that case, as it has come to mean today; and was the case decided in an atmosphere conducive to a detached determination of a highly contentious matter with political overtones?

To reverse the Golak Nath case (1967), which had held that Parliament had no power to amend fundamental rights, and in anticipation of a major constitutional battle, we now know that the government carefully selected some judges who would not be obstructive to its reversal. The case became a contest not only between the rival parties but apparently among some of the judges who were committed to their own strong views on Parliament's power to amend the Constitution. Justice Jaganmohan Reddy records this about some his colleagues: "I got the impression [from the first day] that minds were closed and views were determined."

The case was essentially a political fight in a court of law with a political background. It was conducted under continuous and intense pressure the likes of which it is hoped will never be seen again. One author has described the atmosphere of the court as "poisonous." A judge on the bench later spoke about the "unusual happenings" in the case. If the several "unusual happenings" in the case are related in detail, they will make one doubt if the decision in the case was truly a judicial one — expected from judges with detachment from the results of the controversy before them.

On April 24, 1973, the eleven separate judgments were delivered by nine judges; collectively these ran into more than 1000 printed pages. Six judges — Chief Justice S.M. Sikri and Justices J.M. Shelat, K.S. Hegde, P. Jaganmohan Reddy, A.N. Grover, and S. Mukherjea — were of the opinion that Parliament's power was limited because of implied and inherent limitations in the Constitution, including those in fundamental rights. Six other judges — Justices A.N. Ray, D.G. Palekar, K.K. Mathew, S.N. Dwivedi, M.H. Beg, and Y.V. Chandrachud — were of the opinion that there were no limitations at all on Parliament's power to amend the Constitution. But one judge — Justice H.R. Khanna — took neither side. He held that Parliament had the full power of amending the Constitution; but because it had the power only "to amend," it must leave "the basic structure or framework of the Constitution" intact. It was a hopelessly divided verdict after all the labour and contest of five months. No majority, no minority, nobody could say what was the verdict.

How was it then said that the Court by a majority held that Parliament had no power to amend the basic structure of the Constitution? Thereby hangs a tale not generally known. Immediately after the eleven judges finished reading their judgments, Chief Justice Sikri, in whose opinion Parliament's power was limited by inherent and implied limitations, passed on a hastily prepared paper called a "View of the Majority" for signatures by the thirteen judges on the bench. One of the conclusions in the "View of the Majority" was that "Parliament did not have the power to amend the basic structure or framework of the Constitution." This was lifted from one of the conclusions in the judgment of Justice H.R. Khanna. Nine judges signed the statement in court. Four others refused to sign it.

By any reading of the eleven judgments, this conclusion could not have been the view of the majority. It was only the view of one judge — Justice H.R. Khanna. Some judges had no time to read all the eleven judgments as they were prepared under great constraints of time owing to the retirement of the Chief Justice the next day. Justice Chandrachud confessed that he had a chance hurriedly to read four draft judgments of his colleagues. No conference was called of all judges for finding out the majority view. The one conference called by the Chief Justice excluded those judges who were of the opinion that there were no limitations on the amending powers. Nor was the conclusion debated in court, as it ought to have been. The Chief Justice's action has been described by some as an act of statesmanship. Others believe it was a manoeuvre to create a majority that did not exist.

The verdict would have remained in this uncertain state but for accidental events following the decision. On August 1, 1975, with lightning speed and by an outrageous abuse of the amending power during the Emergency, Parliament made the 39th Amendment to the Constitution. This introduced Article 329 A of the Constitution — which sought to validate Indira Gandhi's election set aside by a judge of the Allahabad High Court without any contest, including her pending appeal in the Supreme Court.

On August 11, 1975, Indira Gandhi's election appeal against her disqualification was heard by five judges presided over by Chief Justice A.N. Ray. He had been appointed Chief Justice of India by the government the day after the judgments in the Kesavanada case — superseding three other judges who had decided against the unlimited power of Parliament to amend the Constitution. The government believed that with the amendment to Article 329A of the Constitution, her appeal would simply be allowed. But so outrageous was the amendment that all five judges declared it bad as it violated "the basic structure." Nevertheless, Indira Gandhi's appeal was allowed by an amendment made to the Representation of the People Act, 1951, which cured all illegalities in her election. The court could strike down constitutional law but not an ordinary law that carried out the same purpose. To many this seemed perplexing.

Everyone took it that the court had now approved the basic structure theory by striking down the amendment to Article 329A — everyone, that is, except Chief Justice A.N. Ray. He had stated in Indira Gandhi's case that the hearing would proceed "on the assumption that it was not necessary to challenge the majority view in Kesavananda Bharati case." On November 9, 1975, two days after the Indira Gandhi case was decided, the Chief Justice constituted a new bench of thirteen judges to review the Kesavananda Bharati case.

For two days, N.A. Palkhivala made the most eloquent and passionate argument against the review. On November 12, the third day, the Chief Justice announced suddenly at the very outset of hearing: "The bench is dissolved." Thus ended an inglorious attempt to review the Kesavananda judgment. Whatever the reasons for the dissolution of the bench, Chief Justice Ray's maladroit attempt to review the basic structure limitation gave it a legitimacy that no subsequent affirmation of it could have given.

But the problem could not be avoided. In 1980, in the Minerva Mills case, the question was raised whether there was indeed a majority view on the limitation of the basic structure. Justice Bhagwati said that the statement signed by nine judges had no legal effect at all and could not be regarded as the law declared by the Supreme Court. He said the so-called majority view was an unusual exercise that could not have been done by judges who had ceased to have any function after delivering their judgments and who had no time to read the judgments. However Justice Bhagwati relieved himself from deciding what he called "a troublesome question" by saying that Indira Gandhi's case had accepted the majority view that Parliament's power of amendment was limited. This was not correct as that case was decided on the assumption that it was not necessary to challenge the majority view.

So a single judge's opinion — Justice Khanna's of a limitation of the basic structure on Parliament's power — has passed off as the law. But Justice Khanna was responsible for another vital dimension of the basic structure two years after the case was decided. In the Kesavananda case, he did not say that fundamental rights were part of the basic structure of the Constitution, although six other judges said that and the case was entirely about the validity of amending fundamental rights by the challenged constitutional amendments. Three of Justice Khanna's brother judges in the Kesavananda case were clearly of the opinion that Justice Khanna had not held that fundamental rights were part of the basic structure in the Kesavananda Bharati case.

But in Indira Gandhi's election case two years later, Justice Khanna "clarified" his judgment in the Kesavananda case. He now said that he had given clear indications in his judgment that fundamental rights were part of the basic structure. By so clarifying his judgment, Justice Khanna did not realise that this clarification rendered his judgment in the Kesavananda case hopelessly self-contradictory, as he had held unconditionally valid two constitutional amendments that nullified vital fundamental rights. With that dubious exercise, Justice Khanna's "clarification" is now a vital part of the basic structure. Fundamental rights are now immune to an amendment if it violates the basic structure of the Constitution.

In the latest judgment, delivered on January 11, 2007, by nine judges of the Court on the Ninth Schedule to the Constitution, the basic structure limitation has been stated to be "an axiom of our constitutional law." An axiom means a self-evident truth. So be it. Whatever its origins, the basic structure theory plays a useful part in our constitutional jurisprudence. Parliament does not and should not have an unlimited power to amend the Constitution. However, in the glorification of the basic structure theory, it is important to bear in mind its infirm roots and how predilections and prejudices of judges, chance, and accidental circumstances have played a greater part rather than any logic or conscious formulation of it.

(The writer is a former Solicitor-General of India. This article is based on his lecture, which was presided over by Lok Sabha Speaker Somnath Chatterjee, to the Supreme Court Bar Association on April 4, 2007.)