A Constitution under the government: Inventing an untenable paradigm

"If we wish to preserve the Constitution in which we have sought to enshrine the principle of Government of the people, for the people and by the people, let us resolve not to be tardy in the recognition of the evils that lie across our path and which induce people to prefer Government for the people to Government by the people, nor to be weak in our initiative to remove them. That is the only way to serve the country. I know of no better."

- Dr. BR Ambedkar's last speech in the Constituent Assembly on adoption of the Constitution (November 25, 1949).

In the recent spate of articles by eminent voices, a constitutionally untenable theme is being invented: that civil society, media and lawyers (pejoratively labeled “the unelected”) should back down, courts should from desist from hearing in PILs and allow the wisdom of the executive to prevail. The current argument rages against the “the unelected” imposing their will on the judiciary. There are innumerable fallacies and constitutional faux pas in these arguments.

Take scenario No.1: A corporation faces an assessment with a huge tax liability. The executive wills that the tax demanded is paid. The corporation challenges the tax demand in court. Is this legal action an attempt by “the unelected” to secure a judicial verdict against the wishes of the elected government?

Now consider the scenario No.2: Millions of migrant workers, having lost their jobs and their salaries, commenced the long walk to their villages. The scale of the tragedy of this trek is unprecedented in modern history. Concerned citizens, on behalf of the millions, repeatedly engage the court, to secure their fundamental right to life. This is perceived as an attempt by the “unelected” to pressure the judiciary to act against the elected majority. Can the rights of these millions be labeled as an “enforcement of pseudo-constitutional rights”?

The jurisprudential distinction between the two scenarios is not substantive. It is only an anachronistic procedural bias. The corporation approaches the court on its own strength. Whereas civil society takes up the cause of the migrating millions. There would have been no quarrel if the migrants could have similarly, individually engaged lawyers, filed petitions, and argued each individual case. The absurdity is patent.

This argument of the locus of the civil society is based on an antiquated Anglo-Saxon premise long discarded even in the country of its origin. Just to illustrate, the United Kingdom Supreme Court issued directions to enforce Euro directives on pollution levels against the government in an action by the legal NGO ClientEarth. Thereafter, in 2016 and 2018, ClientEarth secured directions from the High Court against the government to reduce the unacceptable levels of pollution in 33 cities and towns.

The argument asserted is that political matters cannot be touched upon by the courts. This again is an outdated argument here in India, UK, USA, or any Western democracy. The UK Supreme Court unanimously held the Prime Minister’s action of the sudden prorogation of the Parliament as illegal. It rebuffed the ‘hands off it’s a political question’ argument. The Court ruled, “many if not most of the constitutional cases in our legal history have been concerned with politics in that sense”.

Critics ask the judges to be reticent, because “Judges are appointed and not elected”. The phrase ‘unelected judges’ is meant to resonate the image of an undemocratic lesser wing. This is a misguided understanding of the nature of Constitutional Courts in a constitutional democracy like ours. The judiciary’s existence is not to mouth articles of faith in the executive or the legislature. The judges are there to ensure that governance goes on in accordance with the mandate of the constitution.

This was settled long ago by the US Supreme Court in Marbury v. Madison (1803). The newly elected President Thomas Jefferson did not want the Commission to be given to Marbury, who was appointed by the previous President. Chief Justice John Marshall asserted that the Constitution was the “paramount law of the nation” and the will of the executive had to give way to the supremacy of the Constitution. Thankfully, this judgement is endorsed by our courts as a truism.

There is also the opinion, conjunctively, that the media highlighting inaction of the executive is undesirable and unwarranted. The media and civil society, which witness events and operation of policies at ground level, informs. It is a vital catalyst for commencing and calibrating responses of the government. Nobel Laureate Amartya Sen, had empirically demonstrated,”No famine has ever taken place in the history of the world in a functioning democracy”. Sen explained that democratic governments ”have to win elections and face public criticism, and have strong incentive to undertake measures to avert famines and other catastrophes.”

There is a constant fallacious refrain that the British transferred power to the three wings of the government. Did it? The crucial component of the polity which is missing in the argument is, “we the people”. Ambedkar, fully conscious of this misconception, in one of his earliest addresses to the Constituent Assembly, referred to the stand of the 1936 AICC resolution at Faizpur which stood for “a genuine democratic state in India where political power has been transferred to the people, and the government is under their effective control.” This resolution was echoing the sentiment expressed by Mahatma Gandhi as far back as in 1922 who said “The British Parliament, when the settlement comes, will ratify the wishes of the people of India as expressed through freely chosen representatives.”

Infact, it would pay to read the remarkable judgment of the Supreme Court of Srilanka in 2019, in a challenge against the President gone rogue. The Court, in unparalleled constitutional eloquence, said that the sovereignty of the people was the 'grundnorm' of the Constitution, the Fundamental rights were "part of their intangible heritage" and the Court was "giving tangible and effective life and meaning to the sovereignty of the people". Lest it be forgotten ‘We the people’ are the ultimate repository of power.

There is selective amnesia of the string of decisions which lit the path in jurisprudence of PILs. In Bandhua Mukti Morcha, the Supreme Court enabled anyone to activate the court for people “unable to approach the court for judicial redress on account of poverty or disability or socially or economically disadvantaged position”.

In Sachidanand Pandey v. State of West Bengal, the Court gave a clarion call to drop the procedural shackles when basic human rights are invaded which “shock the judicial conscience that the courts”. In Janata Dal v. HS Chowdhary, it was said that the rules of locus were to be relaxed to “wipe out the tears of the poor and needy, suffering from violation of their fundamental rights”.

The active intervention of civil society, the vigilant press, the lawyers and the scores of Indians who rallied for the safe passage of the migrants was an assertion that “we the people” are a vital part of the Constitution. “We the people” always were, always are and always will be integral to our Constitution. The idea is neither novel nor new. It was articulated in 1863. It was the last defining sentence of Abraham Lincoln's Gettysburg address: "that government of the people, by the people, for the people, shall not perish from the earth".

That’s how our founders designed and willed our Constitution. Any paradigm sought to be contrived to the contrary is untenable.

The author is a Senior Advocate at the Supreme Court of India and author of Choosing Hammurabi: Debates on Judicial Appointments’ (LexisNexis);`Appointing our Judges: Forging Independence and Accountability’ (LexisNexis); and`The Maoist Movement in India: Perspectives and Counter Perspectives’ (Routledge).