“By clinging on to the Basic Structure doctrine, Supreme Court is advocating a revolution”, Shanmugham D Jayan - Part II

Murali Krishnan September 4 2017
Laissez Faire

I am seated alongside Shanmugham’s two sons and two of my friends. Hot puttu is being served onto my plate as we resume our conversation from where we had left off.

He had spoken about how those in the higher echelons should take care to ensure that standards [in the profession] are set high. And that is definitely a hint.

Supreme Court – the mistakes

“Where do you think the Supreme Court started getting its basics wrong?”, I query.

“Laying down Rules for interpretation!

There is a provision and there is a rule for interpretation of the provision. But when we look at these rules for interpretation [in India], we realise that those rules for interpretation are also judicial decisions. So, I write a book, and hand it over to someone else to read. If I give that person the right to decide how to read or understand that book, then what is my significance?

In our system, the right to enact [laws] is with the Legislature. The right to interpretation is given to the judiciary. However, the judiciary has not stopped there. It has gone beyond its role and has vested in itself the right to decide the rules for interpretation. So, it is like giving a blank dictionary to the court and allowing it to decide the meaning of every word. This can be very damaging.

The concept of ‘Read law as it is’, which is prevalent in the Civil Law System is not present here. In the long run, we don’t know where it will take us. In my opinion, at least the rules of interpretation should not be decided by courts.”

He cites Article 32 to buttress his point.

Does Supreme Court need Article 32 today?

“Article 32 states that if anyone’s Part III right is violated, and he approaches Supreme Court, the Court can issue its prerogative writs to extend remedy to the aggrieved. So Supreme Court has only one power – to give remedy. This is what Article 32 – which Dr. Ambedkar described as the most significant Article in the Constitution – says. But what is happening now? All Part III rights including Article 21 have been interpreted and given very wide scope not envisaged by the Constitution makers.

Further, the Court has also diluted the concept of locus standi. The Supreme Court has now started relying on anything and everything which they hear or read somewhere to invoke Article 32 jurisdiction.

So ultimately, the Supreme Court is deciding everything from the scope of the right, to who is affected, to what the procedure is. The power to give remedy was already vested in them by Article 32. So if all these rights are being exercised by the Supreme Court, then what is the need for Article 32?”

The conversation drifts towards the inevitable.

Basic Structure doctrine – no Constitutional backing whatsoever

“Do you think it comes in the way of the popular will of the elected representatives?”, I ask.

“Absolutely. Does the Constitution envisage a concept called Basic Structure?No. A 11-judge Bench decided something. In order to overcome that, a 13-judge Bench was constituted. Then a judgment comes with a wafer-thin majority of 7-6 in which they interpret the majority judgment as laying down the Basic Structure doctrine. [That itself is arguable and there is difference in opinion as to whether a ratio is there or not].

But assuming there is a ratio by the majority, the said ratio is that there is a Basic Structure which cannot be altered and that there are certain elements/ features which are part of Basic Structure. But the catch is, that list is not exhaustive and it is like ‘we will decide what all will fall into that net as and when any case comes before us’. And they keep expanding its scope using the doctrine.

However, what is preposterous is that there is no proper answer to why it (Parliament) does not have the power to amend what it calls the “Basic Structure”; it is just a statement by the Court. What is the rationale behind that statement? Nothing, it is a mere statement. And the Basic Structure is founded on that statement.

There is a movie by Ingmar Bergman by the name Fanny and Alexander. The following dialogue from that movie comes to my mind:

‘On a flimsy ground of reality, imagination spins out and weaves new patterns’. It is an apt analogy for the Basic Structure doctrine, which has no Constitutional backing whatsoever”.

But what is the harm in having a Basic Structure doctrine to protect our Constitution?

Shanmugham strongly feels that it is dangerous in a democracy to cling on to a doctrine which stands in the way of change.

“In the modern world, there is only one major system which has not undergone marked structural changes – that is England. And what is special about England is that it has an unwritten Constitution, and that affords flexibility.

I don’t know if you have read this one Panchatantra story. The story goes like this: There is a strong, tree, and a small, weak tree. The strong tree pokes fun at the smaller, weaker tree. But in a thunderstorm with strong winds, the weaker tree bends while the stronger tree gets uprooted.

So weakness is sometimes strength, especially when it is a capacity to adopt to changes.

Bringing the same analogy to our discussion, we have a basic document. Leave that document to be amendable by the persons who are voicing the will of the people. Let them decide so that the basic document changes with time as per the will of the people. So what will be the result?

That document will exist and a revolution will not be needed to change it. But when the Court is saying that Basic Structure cannot be changed and they are clinging on to that concept and its ingredients and also adding new ingredients as and when it pleases, the Court is actually advocating a revolution. Because if people want to change any of those ingredients, then there is no other way. And that is the biggest danger of the Basic Structure doctrine.”

However, what about the practical usefulness of the doctrine? Is it not a tool to protect the Constitution against problems that majoritarianism poses – like trying to lasso the judiciary, flatten rights of minorities etc.

In the times of majoritarianism, Constitution will only buy you time, nothing more

“In a democracy, a majority government is a political majority, not a religious or linguistic majority. Religious and linguistic minority is actually determined by the strength of religion or language. Democratic government is determined by whether it is political majority or minority. Hence, when we say that the treatment of religious or linguistic minorities determines the quality of a democratic system, it is incorrect.

However, when the political majority is actually a reflection of religious/ linguistic majority, then the dividing line between political majority and religious/ linguistic majority blurs and the controlling factor becomes one and the same.

That is when the apprehension raised by you becomes relevant.

Now when such a government is wielding their power to impress upon majority, they might be in a position to do anything and that is definitely a threat. If we end up in a situation wherein the political majority is a religious or linguistic majority, and they start doing things according to their whims and fancies, even to the extent of destroying the system itself, then the only option is to face it. The basic  document may be able to lengthen the life of the system to some extent. It will buy you some time, nothing more than that. It will not be able to stop the inevitable.”

Does that not scare him? He says there is another aspect to it.

Those who divide subjects are in for doom

“Those who divide the system or subjects based on any criteria are in for doom. Today, we start with religion, say Hinduism or Islam. Do you think that if Hindu religion alone prevails in a place, that state/nation will survive? Soon, the next [division] will emerge – upper and lower [class/caste], and then within that the next. Subsequently, there will be divisions based on language and so on and so forth. There is no stopping that.

There is that famous cartoon in which a bigot is holding weapons in each of his limbs and is fighting with himself. That would be the case.”

“Can the Supreme Court stop such a majoritarian threat?”

His answer to that is very categorical.

We don’t have a precedent to show that Supreme Court will save the country

“I seriously doubt the capability of the Court to effectively address such a situation. I don’t need to go beyond ADM Jabalpur to buttress my point. It is a case about which I talk a lot even in Constitutional law classes at NUALS. [This interview was conducted before the Supreme Court delivered the privacy judgment, in which it expressly overruled ADM Jabalpur].

That was a time when the Executive was in full might. We all know who the sitting judges were – they were the so-called champions of human rights. And they fell on their knees before the might of the Executive.

One said about the power that they are still holding but that emergency declaration only took away the right of the detenues to approach them.  Justice Chandrachud even specifically said, ‘Furthermore, we understand that the care and concern bestowed by the State authorities upon the welfare of detenues who are well housed, well fed, and well treated. is almost maternal.’ Justice Bhagwati on a later period confessed that he decided that case wrongly.

In his Justice Khanna Memorial Lecture of 2009, former Chief Justice MN Venkatachaliah said the decision deserved to be “confined to the dustbin of history”.  How are we supposed to believe and trust an institution like that? Even the parliament, in our democratic system, has never become an absolute failure like that.

After Emergency was declared and problems arose, how did the country recover? It was not because of the Supreme Court’s intervention, it was because the citizens interfered.

We don’t have a precedent to show that this institution [Supreme Court] will save the country. On the other hand, we have a precedent to claim the contrary. The Supreme Court has not proved its mettle yet.”

What are his thoughts on the Collegium system?

Collegium system – beating around the bush

“They arrived at the interpretation [of primacy of CJI’s opinion] by beating around the bush. Time has proved that it was better left to the Executive or the Parliament. I haven’t looked at it from a statistical perspective. Yet from a broad glance, it seems to be very obvious that majority of current judges are somehow connected with earlier judges.

Let me give you another glaring example – the BCCI case. We all know that in India, most Sports Associations are facing lot of problems and are mired in mismanagement and controversies. Why is it that the Supreme Court selected BCCI alone for its corrective work.

There are crores of cases pending in the courts in this country. That is the level of competency of judiciary. Why should such an institution interfere with another institution which is financially strong and has promoted sports successfully? If at all there was a need for interference, it should have come from the executive. Why should the judiciary meddle into the affairs of such an institution?”

As I finish my dinner, we move to the 13th floor balcony. Sipping hot coffee, we talk about NUALS and experience of Shanmugham in the teaching field.

Shanmugham D Jayan

NUALS happened through IT for Law Professionals

“KNC Pillai sir, who was my teacher, was involved in charting the syllabus when NUALS was being set up. Back in the early 2000s, people were not very adept at computers. Pillai sir told me that the students need a paper that could be useful in terms of computer education. I helped him with that and that is how we have the subject, Information Technology for Law Professionals at NUALS.

Since Pillai sir was involved in drafting the syllabus, he also recommended a list of ‘suggested faculty’. For IT for Law Professionals, he gave my name though I was not aware about it.  When the concerned semester classes started, Registrar of NUALS rang me up and told me that my name has been recommended for Information Technology for Law Professionals. That is how it began.

I taught the first batch. While I was teaching the second batch, Professor Leela Krishnan sir who was teaching Constitutional law had some inconvenience and asked me to fill in. I took a few classes for the first batch in the subject of Constitutional law.

I always wanted to learn and teach jurisprudence since it is a subject which I like a lot. So I told Balakrishnan Sir, who used to teach jurisprudence, that I would like to take jurisprudence classes for the second batch.”

Taking classes – the art of story telling

“The story telling part is never planned. I read a fair deal. I am very forgetful about ordinary things but remembers silly things which others miss. Whenever I teach or interact, these examples pop up due to that. That is how this habit of story-telling came about.”

Some tips for teachers

“Everybody makes mistakes. We may also miss some points. But what we teachers should keep in mind is that when we don’t know something, we should be brave enough to admit that. When students ask a question and one does not know the answer, he or she should not beat around the bush. If you admit that you don’t know, that in itself will give you confidence.

Further, we teachers also have to learn from everyone, including students. Even as adults, we learn quite a bit from children.”

The World is very good

“As far as I am concerned, the world is very good. In my opinion, if we interact with each other unselfishly and truthfully, we can accommodate everyone. In my house, everyone eats non-vegetarian food, except me. However, I cook non-vegetarian food for them. I have seen people eating vegetarian food express disgust when they see others eating non-vegetarian food. What is the need for that? I have some traits and beliefs, somebody else has different traits and beliefs. We do not have to protest or oppose another person to follow the path which we prefer”, concludes Shanmugham.

It is past 9 pm. I stare out at the city lights that dot the growing eastern side of the city before taking my leave. The world is indeed very good, at least from the 13th floor balcony.

(This is the second and final part of the interview. You can read the first part here. Premium subscribers can read the full interview here).

Murali Krishnan is Associate Editor at Bar & Bench. He tweets @legaljournalist

 

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