Columns: The Forgotten Lessons of History

Suchindran BN

It was BR Ambedkar who warned us that it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration.  The politics and the merits of the impeachment of Chief Justice Dipak Misra aside, there are many crimes against judicial and constitutional propriety that have been done in this cause.

I have written earlier about the unbearable wrongness of the impeachment order. The latest steps taken by the Supreme Court in the judicial challenge to that order have further compounded that wrong.

It appears that after the matter was mentioned before the second senior most judge, Justice Chelameswar,  who given the circumstances was understandably hesitant to take up the matter immediately, the Chief Justice designated a constitution bench to hear the matter relating to his own impeachment.

The convention would have required the Chief Justice to recuse himself from dealing with the matter either administratively or judicially. Since the allegations against him arise in part out of a letter written by the 2^nd to 5^th senior most justices of the Court, it was but proper that they should also have been excluded from judicial, though not necessarily, administrative consideration of the matter.

The impropriety lies not in the composition of the bench consisting of the sixth senior-most Justice onwards, but in the refusal to disclose to the petitioners, and also satisfy themselves, of the source of their own power. Any order passed by such a bench could be rendered a nullity in the eyes of the law by the secrecy surrounding its creation. This is because every act done by any organ of the State has to be finally traced to some power flowing from the Constitution. I do not say this lightly and there are instances in our constitutional and institutional history which would substantiate my argument.

Chief Justice Gajendragadkar and the rule of bias (1964)

The rule of bias operating against the Chief Justice has an interesting precedent. A matter concerning the interpretation of two state land acquisition acts from Madras and Bombay came up before a constitution bench headed by Chief Justice Gajendragadkar.

When the matters arising from Bombay was taken up he was requested to recuse himself since any decision rendered would also affect a cooperative housing society of which he was a member. He reluctantly agreed to do so but was insisting on hearing the matter arising from Madras as he would have no direct benefit. It was here that the Attorney General for India CK Daphtary intervened and informed him that the rule of bias would still apply since any decision he rendered in the Madras case would bind the other bench.

As Fali Nariman, recounts in his autobiography,  that the decision in both cases would have likely favored the government if Gajendragadkar, and not Subba Rao, had headed the bench since their views on the subject matter of the litigation were well known. Nariman adds that the stand taken by Daphtary was courageous since it was against his and his client’s interest but was in ‘the best traditions of the bar.’

In the words of our greatest constitutional lawyer and scholar HM Seervai: in recusing himself  “the Chief Justice had affirmed in India the principle, well settled in England, that the requirements of natural justice apply to the most exalted judicial officer as they do the humblest.”

One is forced to wonder whether it is the traditions of the bar or the rigours of natural justice that have been whittled down today in the case of the Chief Justice Dipak Misra, or both.

Revisiting the Basic Structure (1975)

The other historical antecedent was the ill-fated attempt by Chief Justice AN Ray to review the decision in Kesavananda Bharati (1973) which had held that the basic structure of the constitution cannot be abrogated even by a constitutional amendment. It must be remembered that Ray was the beneficiary of the first supercession.

Attorney General Niren De had sought a review of the judgment in Kesavananda Bharati on the unimpeachable ground that it was unclear while arguing the Indira Gandhi’s election case (1975).  Curiously, a bench of 13 judges was convened three days after the basic structure doctrine found affirmation in  Indira Nehru Gandhi v. Raj Narain (1975). The basis of this review was supposed to be an application by the Union and State of Tamil Nadu that there were a number of land ceiling cases pending in the High Courts on violation of the basic structure.

But could a review of a decision be undertaken on a unilateral basis by the Chief Justice? When it was suggested by the Chief Justice that it was based on the application filed by Tamil Nadu, the Advocate General Govind Swaminadhan intervened to categorically state that the application did not ask for any such review.

The bench was dissolved, after two days, as the other judges withdrew support. According to Upendra Baxi, many of the judges (even those who did not support the basic structure doctrine) believed that “strange things might happen to the Court and the Constitution” if such a review were permitted to continue.

The Emergency Comparison

During the emergency, we learnt (or possibly did not learn) how an innocuous provision under Rule 12 of Government of India (Transaction of Business) Rules 1961, can be used to subvert the Constitution itself. It was this provision under which Indira Gandhi, as the head of the executive branch, unilaterally assumed emergency powers by dispensing with consultation with her cabinet.

Here it is the head of the judicial branch exercising his powers as a master of the roster and dispensing with consultation with his colleagues in a matter in which he is directly interested by a literal interpretation of the powers under the Supreme Court Rules, 2013.

In 1977, democracy was restored at the ballot box, and constitutional faith restored despite the abject capitulation of the Supreme Court in the Habeas Corpus case (1975). The new Janata government headed by Morarji Desai amended the constitution to ensure that any future proclamation of emergency would require the written communication of the cabinet and not that of the Prime Minister alone.

What we need now is a system which will ensure that no future Chief Justice of India would exercise the largely formal powers of the master of the roster in a similar manner as the current incumbent. While I am not suggesting that the suggestion made by Shanti Bhushan in his petition is the optimal solution, the manner in which his petition was dealt with has also left much to be desired.

A Judicial Chamber of Secrets

In Harla v. State of Rajasthan (1951), a challenge was made to the Jaipur Opium Act passed by a Council of Ministers appointed by the Crown representative to the British government to carry on administration during the minority of the incumbent Maharaja.

In 1951, the newly established Supreme Court struck down the Act, not on the basis of any specific constitutional provision, but because they held that “it was inconceivable that a body could wield such powers so abhorrent to the fundamental principles of natural justice which all freedom-loving peoples share.“

This decision becomes all the more relevant to our present conundrum since Justice Vivian Bose added that the “thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing” shocks the conscience and is abhorrent to civilised man.

The refusal of the constitution bench to disclose any administrative or judicial order giving them jurisdiction cannot be justified on any ground for the constitution demands that every power of every authority should be traced back to the constitution.

 China and India

Keeping up with current fashion, let me now make an instructive comparison with our much-admired neighbour to the east. Surprisingly, a comparative study between the Indian and the current Chinese constitution of 1982 will reveal a lot of similarities in the provisions relating to civil and political rights.

For example, Article 35 of the Chinese Constitution provides for freedom of speech, of the press, of assembly, of association, of procession and of demonstration; Article 3 states that China is a democracy. However, all this is negated by Article 128 that states that the Supreme People’s Courts is responsible to the National People’s Congress and its Standing Committee. And that has made all the difference. For the founders of our Republic entrusted their Constitution to independent judges and courts.  Whether those divergent choices will continue to make a substantial difference or amount to the same is only for the future to unravel.

Conclusion

Echoing voices heard  in the constituent assembly, it was Justice Vivian Bose, who  stated that the “heart and core of a democracy lies in the judicial process, and that means independent and fearless judges free from executive control and brought up in judicial traditions and trained to judicial ways of working and thinking.”

For Bose understood that the constitutional provisions were but empty vessels without the fundamental principles and notions of natural justice forming a protective coral reef around them. It is the development and protection of this reef that is the glory of constitutional courts around the world.

Let me end with another quote from the same judge in Bidi Supply Co. v Union of India (1956) which, though written more than six decades ago, speaks almost directly to our present: :

“In a democracy functioning under the Rule of Law it is not enough to do justice or to do the right thing; justice must be seen to be done and a satisfaction and sense of security engendered in the minds of the people at large in place of a vague uneasiness that Star Chambers are arising in this land. We have received a rich heritage from a very variegated past. But it is a treasure which can only be kept at the cost of ceaseless and watchful guarding. There is no room for complacency, for in the absence of constant vigilance we run the risk of losing it. “It can happen here.”

Our silence at this juncture will amount to acquiescence and betrayal of constitutional faith.

Suchindran BN is an advocate practicing in the Supreme Court of India and Madras High Court. He was formerly an Associate Fellow of the Vidhi Centre for Legal Policy and ‘devilled’ in the chambers of Arvind Datar