(Adv. A. K. Ananda Krishnan is currently a Student (LL.M. Course) at Department of Law, University of Kerala)
Featured Painting – “Promulgation of the Constitution” by Toyohara Chikanobu
INTRODUCTION
“First, do no harm” is one of the several oaths that a physician takes while entering the noble profession of medicine. Given that the common man approaches a medical practitioner to cure his malady, and not to create further harm for himself, this oath may appear to be axiomatic. Nevertheless, this oath conveys one of the most cardinal principles of medical ethics, that is, the risks of harm during the course of a treatment should never outweigh its potential benefits. For what a travesty it would be if a doctor, who started out to help a patient, ends up causing more harm to his patient than the actual disease. Alas, history is littered with instances where the antidote did more harm than the poison.
And like the physician who needs to be reminded “First, do no harm”, governments too need to be reminded not to turn against their own citizens. While governments are acknowledged, without exception, as a sine qua non for an individual to fully realize themselves, as they can nurture their creativity, their dignity, and their whole personality only in an ordered society. At the same time, it is also accepted that the need for government creates its own problems for the individual, such as how to limit the arbitrariness that is inherent in government and how to ensure that governmental powers are exercised only for the good of society.[i] Without answers to these problems, the individual will soon find that the government is more trouble than it’s worth. Fortunately, the answers to these problems can be found in the concept of constitutionalism.
CONSTITUTIONALISM
The notion of constitutionalism is essentially concerned with limiting the arbitrariness of governmental power. It recognizes the need for a government but insists on limitations being placed upon the exercise of State powers. In essence, it connotes a limitation of government and serves as the very antithesis of arbitrary rule. Its opposite is despotism, a government of will rather than of law. [ii] It envisages checks and balances and putting the powers of the legislature and executive under some restraints and not making them uncontrolled and arbitrary.[iii] But isn’t that precisely what a Constitution does? Not necessarily.
CONSTITUTION AND CONSTITUTIONALISM
A Constitution may be defined as the fundamental and organic law of a nation or State that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties. Now a country may have a Constitution but not necessarily have constitutionalism.[iv] In other words, a Constitution is no guarantee of constitutionalism. For instance, a country with a dictatorship, where the dictator’s word is the law, can be said to be having a Constitution but not necessarily constitutionalism. So it would be fair to suggest that North Korea is devoid of constitutionalism although it possesses a written Constitution. This is why modern political thought distinguishes constitutionalism and Constitution. The underlying difference being that constitutionalism insists that a Constitution ought not to merely confer power on the various organs of the government, but also seek to restrain those powers.[v]
As has been well said by Lord Acton, power corrupts and absolute power corrupts absolutely. Unlimited powers always run the risk of jeopardizing the freedom of the people. So even if it is the Constitution that may be conferring unrestricted powers on either the legislature or the executive, it will still pose a risk of the government turning authoritarian and oppressive. Therefore to preserve the basic freedoms of the individual, and to maintain their dignity and personality, simply having a Constitution will not suffice, but the Constitution must be necessarily permeated with constitutionalism.[vi]
HISTORICAL PERSPECTIVE
Though the distinction between Constitution and constitutionalism is fairly novel, the idea of constitutionalism is not something new. It is something that is embedded deeply in human thought. Many natural law philosophers, such as Aquinas, Locke, and Grotius, promoted this notion throughout their writings.[vii] The Magna Carta, 1215, further solidified the classical view that law is supreme. As Professor Sutherland put it best, “The great charter was obviously a cherished standard and a welcome assurance that people could set some limitation on the arbitrary power of the king.”[viii]
ESSENTIALS OF CONSTITUTIONALISM
But despite this antiquity, legal scholars are yet to reach an agreement on the central tenets of constitutionalism. For instance, Professor Jain is of the opinion that a written Constitution, an independent judiciary with powers of judicial review, the doctrine of rule of law and separation of powers, free and fair elections to legislature, accountable and transparent democratic government, fundamental rights of the people, federalism, and decentralisation of powers form the bedrock of constitutionalism in a country.[ix] At the same time, some would assert that the United Kingdom is devoid of both a written Constitution and federalism but is the motherland of modern constitutionalism. In fact, as per De Smith and Brazier, the United Kingdom’s culture of constitutionalism protects more efficiently the rights of individuals than many states which are equipped with a plethora of instruments designed to achieve the same.[x] Thus a broad consensus escapes the requisites of constitutionalism. Be that as it may, all are in agreement that at the core of constitutionalism is all that limits the tyrannical exercise of governmental power, particularly an independent judiciary vested with powers of judicial review. It could be even argued that a strong and independent judiciary is a sine qua non for constitutionalism.
CONSTITUTIONALISM AND THE APEX COURT
Politicians in developing countries tend to have strained relations with their Constitutions generally because the Constitution enshrines values and ideas that are antithetical to those of the rulers.[xi] While the Constitution is intended as a check upon governmental power and to limit arbitrariness in governance, the politicians tend to have an authoritarian orientation. They tend to be impatient with it, and want to break away from all constitutional restraints; and if the Constitution proves an obstacle, then it must be bypassed or be made to bend to their desires. [xii] And when we come to the Westminster form of government, due to the dilution of separation of powers in the form of executive power being exercised by the Prime Minister and the Council of Ministers, who are members of the Parliament, there is an added risk of further authoritarianism when a political party or coalition enjoys a strong majority, as the Parliament soon stops to effectively hold the Executive to account. This is what has transpired in parliamentary democracies following the advent of Thatcherism, with the parliamentary form of government giving away to the prime ministerial form of government, where the legislative control over the executive not only became symbolic but even the role of the cabinet was significantly diminished.
In such situations of severe concentration of powers, if a country is not fortunate enough to have an age-old culture and legacy of constitutionalism, as is the case in the United Kingdom, the need of a strong and independent judiciary with powers of judicial review arises so as to hold the legislature and the executive to account as well as to prevent and remedy constitutional transgressions. Only if there are independent judges who discharge their functions without fear or favour can the rights of the individual be effectively protected from powerful governments. Only if the Courts are armed with judicial review can the legislature and executive be called to question for any exercise of power inconsistent with the Constitution.[xiii] Fortunately in India, the Apex Court, despite its initial hesitation, has risen to the occasion and has been largely successful in enforcing constitutionalism through a plethora of decisions.
AMENDMENT OF THE CONSTITUTION
Of all the cases where the Supreme Court went beyond the language of the written text of the Constitution to prevent authoritarianism, it is I. C. Golak Nath v. State of Punjab, and Kesavananda Bharati v. State of Kerala that stands apart. These decisions were instrumental in determining the extent and limit to which the Constitution could be amended by the Parliament under Article 368. The question of whether fundamental rights could be amended by Parliament was not something new. It was raised and decided in Shankari Prasad Singh Deo v. Union of India, and Sajjan Singh v. State of Rajasthan. The Court, going largely by the plain text of the Constitution, in Shankari Prasad ruled that the amending power under Article 368 is a constituent power and that amendments to the Constitution were excluded from the ambit of “law” under Article 13(2), and also that it is immune from being subjected to the test of consistency with Part III. In Sajjan Singh, though the Court by a majority of 3:2 upheld the ruling in Shankari Prasad, the minority, J.Hidayatullah and J.Mudholkar, were not persuaded by the assertion that even fundamental rights could not limit the power of Constitutional amendment. The effect of these decisions was an absence of fetters on the amending power of Parliament, which would have paved way for parliamentary authoritarianism, and ran afoul of the notion of constitutionalism.
Fortunately, in Golak Nath there was a change in the disposition of the Apex Court. The Court by a majority of 6:5 ruled that the amending power of the Parliament did not extend to taking away or abridging the fundamental rights. It was held that there was an implied limitation in the Constitution that placed fundamental rights outside the scope of the amendment process under Article 368. It was also ruled that the constitutional scheme has given a place of permanence to the fundamental freedoms and that in giving to themselves the Constitution the people have reserved the fundamental freedoms to themselves. This judgment gave effect to the concept of constitutionalism in its truest essence by insisting on limitations being placed on the exercise of legislative and executive power to avoid any form of despotism.
However, the ruling in Golak Nath was reversed with the passage of the 24th constitutional amendment, which brings us to Kesavananda Bharati, where the constitutional validity of the 24th constitutional amendment was assailed along with the 25thand the 29th constitutional amendments. The Supreme Court by a 7:6 majority held that the power of Parliament to amend the Constitution does not extend to altering the basic structure of the Constitution. The rationale of the decision was that there were implied limitations on the power to amend the Constitution and that the words “amendment of the constitution” cannot have the effect of destroying or abrogating the basic constitutional framework. Since the ruling, the basic structure doctrine has been the gold standard for constitutional amendments and has rightfully restricted the amending powers of Parliament. It continues to serve as a prime example of judicial enforcement of constitutionalism as without this decision, Parliament would have in effect wielded unlimited powers to amend the Constitution, where it could have turned democracy to dictatorship or changed the secular nature of the State.
(This is the first segment of a two part series examining the Apex Court’s contributions in effectuating classical constitutionalism in India. The first part concerns the classical notion of constitutionalism and one of the critical areas where judicial intervention prevented totalitarianism, namely the amendment of the Constitution. The second part will deal with other spheres where the exercise of judicial vigour has been instrumental in holding absolutism at bay, such as due process of law, rule of law, repromulgation of ordinances, state emergency and exclusion of judicial review.)
[i] B. O. Nwabueze, Constitutionalism In The Emergent States 1 (1973).
[ii] Id.
[iii] M. P. Jain, Indian Constitutional Law 6 (7th Ed. 2014).
[iv] Constitution, Black’s Law Dictionary 937 (8th Ed. 2004).
[v] Jain, Supra Note 3.
[vi] Id.
[vii] Id.
[viii] Arthur Sutherland, Constitutionalism In America 13 (1965).
[ix] Jain, Supra Note 3, At 7.
[x] Stanley De Smith & Rodney Brazier, Constitutional And AdministrativeLaw 16-17 (8th Ed. 1998).
[xi] Nwabueze, Supra Note 1, At 301.
[xii] Id.
[xiii] V. N. Shukla, Constitution Of India A-50 (Mahendra Pal Singh Ed., 13th Ed. 2017).
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