Shanmugham D Jayan

“Rome has spoken, the case is closed”, this is a statement attributed to ancient philosopher St. Augustine. The message conveyed by the statement is simple – once the final authority gives a ruling on a subject, there is nothing further to be debated upon the same. Rather, the finding with respect to the matter in hand has come out and the logic, reason, correctness, appropriateness, justness etc. of the same are no more of relevance.

The invariable conclusion is that who has spoken is more decisive than what was spoken. The decision of a monarch also has more or less similar attributes.

The reasoning based on which the monarch took the decision may not be comprehensible to the subjects. It is very common in a dynasty of monarchs that the succession to the throne is taken by the next generation. If one looks at history, it can be found that instances of a son monarch correcting or negating the father monarch’s mandate are plenty. While doing so, such son monarch may not be giving a thought to the fact that his son, when he becomes the monarch, may do the same down the line.

Thus, even if the subjects try to comprehend the reasons for the decision of a monarch, the same might be inconsequential, because the decision might be overturned by the next monarch.

Interestingly, however, the subjects who are at the receiving end of this series of mandates may get impressed by the courage of the subsequent generation in disregarding the earlier generations. However, they will be failing to note the crucial aspect that the same dynasty has been ruling them for generations. A realization about the absence of distributive justice by converging power in the dynasty of monarchs and their eccentricities and incomprehensible mandates devoid of logic, reason, correctness, appropriateness, and justness etc resulted in evolving alternate forms of governance like democracy.

With respect to a democracy, in the present times, almost all democratic republics have a written Constitution. Without a doubt, the Constitution is the basic document of governance of a given system and it determines the entirety of the legal system of that jurisdiction. In a democratic system, without exception, the power to amend such a basic document should be vested with the legislative body of the said jurisdiction.

Since amendments to the Constitution have a series of significant consequences and make major inroads to the root of the system, the exercise of said power is usually burdened with tough procedural requirements so that it is not an easy task for the Legislature.

Within the context of a federal system, generally, further riders are incorporated so that even though the power to bring in amendments to the basic document is vested with legislative powers of Union, the concurrence of Units (States) is also required so as to further ensure the rigidity of the basic document.

“[T]hey depend on the outcome of no election”, ruled Justice Robert H Jackson, part of the majority that rendered the decision in the celebrated case of West Virginia State Board of Education v. Barnette. In that case, the learned Judge was discussing about the scope of individual liberty granted to the subjects by the United States of America’s Constitution.

India is also a democratic republic following a federalist approach in as much as there is a Union made up of individual Units/States. The Indian Constitution has also incorporated a difficult procedural framework for amending the same, so that any change to the basic document is not a cakewalk for the legislative body.

In the original scheme of the Constitution, that prerogative to determine the content of the basic document was vested with the Parliament. Parliament used to enjoy this amending power and brought in multiple amendments to the basic document in the initial decades of the democratic republican system.

However, the scope of amending power vested with Parliament was curtailed by the Supreme Court, initially by equating the amending power as one among the legislative power and further making a finding that since the amending power is legislative power, amendment should be subject to the text of constitutionality as envisaged under Article 13.

Subsequently, the Supreme Court introduced a concept called “Basic Structure”, whereby it concluded that the amending power is not a legislative power, but a power in itself. However, the Supreme Court went further and concluded that the said amending power cannot be used for changing the Constitution beyond a limit.

Thus, the mandate of the Supreme Court was that the amending power should be exercised to the extent that it does not alter the Basic Structure of the Constitution.

At the same time, the Supreme Court was unwilling to exhaustively specify the scope of Basic Structure. The Court left it to the wisdom of judges of the future to add to the said concept. Thus, the Supreme Court has retained the liberty to add further attributes to the Basic Structure, thereby determining what should be the content of the Constitution.

What should be there in the Constitution is decided by the Supreme Court; what should not be there in the Constitution will be decided by the Supreme Court, how the Constitution should be interpreted is already within the scope of the powers of the Supreme Court, and whether a legislated law is unconstitutional or not is also determined by the Supreme Court.

Thus, the statement of the learned Judge in the celebrated United States of America’s Supreme Court case does not have much significance in the Indian context, since as per the Indian polity, as evident from the unchallenged position taken by the Supreme Court, everything will be decided by the Supreme Court and not by the elected representatives of the Legislature.

The concept of a democratic republic was an attempt to overcome the defects in the distribution of justice by the monarchy. Even though many argue that it is not a perfect solution, it was better than monarchy. Admittedly, how a democratic system, which has the mandate of the majority, accommodates the interests of minorities is an important question. There are countries in the world that are uni-political with only a single political view prevailing in the system.

Similarly, there are systems that have multi-political contributions. In the election process in such a country, various political ideologies struggle for power and one among it or a coalition of some among them will become the majority and govern the system. How this majority accommodates the interest of the unsuccessful political minority is a concern. The difficult process of changing the Basic Document acts as a means for ensuring that the distribution justice element is intact.

However, as mentioned earlier, in India, the scope of an amendment to the Constitution, how to interpret the Constitution, review of the Constitutionality of laws are all done by the judiciary and resultantly, it is “Roma locuta, causa finita est”!

Shanmugham D Jayan is a visiting faculty at National University of Advanced Legal Studies (NUALS) Kochi, and Cochin University. He teaches Constitutional Law, Jurisprudence, IT Law and Law of Taxation. He is also a lawyer specialising in taxation and frequents courts and authorities of first instance.