Laissez Faire – Alas! What Have you Done

By Shanmugham D Jayan

A coherent and consistent ideology is the bedrock of a successful legal system. The success of a rule is nothing but acceptance of the ruler’s law by the subjects. From suo moto acceptance of fended subjects emerges the lasting sustenance of a particular rule. This acceptance is a direct function of the underlying ideology and its continued coherence.

Take any modern Constitution. The attempted concept of division of powers has, to a great extent, ensured that judiciary determines what the essence of the underlying ideology of a given Constitution is. Any deviation by Constitutional courts, either intentionally or unintentionally for the sake of rendering “alleged justice” in the case at hand, is a stepping stone for diluting or thwarting the inherent ideology imbibed in the said Constitution.

Individual liberty is a part and parcel of the Indian Constitution. It is concentrated in Part III but is, of course, dispersed throughout the rest of Constitution as well. One who reads Part III of the Constitution can spot a flowering pattern in the arrangement of the same. Article 12 defines ‘State’ whereas Article 13, that is Law, is the tool through which State makes itself known to the subjects. Articles 14 to 18 are a general and specific manifestation of the most cardinal principle of law, that is rule of law/concept of equality. Then comes Article 19 wherein one can find that there is an attempt to touch the subject/individual not directly but the personality of the person/subject that the State will have to contain/control.

In the subsequent Article, that is Article 20, we find the laying down of three fundamental principles of the law of crimes. This Article is a clear indication that the next provision will be actually touching upon the body of the person. Of course, zeroing in on the actual body of the person/subject is very much becoming a reality through Article 21 wherein “Life and Personal Liberty” stands mentioned. This structuring of the Part III provisions is definitely a master stroke by the framers of the Constitution.

Anyone reading the Indian Constitution in toto can find that the underlying theme of the same is rooted not in a Laissez Faire conception but it is permissive to socialism. This French word whence directly translated to English means ‘let do’- a theoretical concept having about five centuries of vintage wherein the subjects are expecting non-interference from the rulers.

Once translated into economic arena, it means the State gives freedom to subjects to take their own course in amassing of wealth with minimal interference from the State.

So to a great extent, this is contradictory to the socialist ideology wherein the State is trying to bring in homogenization of wealth distribution by an active interference. Individual liberty to a great extent free from state interference is the essential character for a system relying on a Laissez Faire.

When building something from scratch and when State does not have the means to actively participate in such a venture, the grant of liberty to subjects is a good option. Such an attempt may also be further conducive when the given environment is lacking many structures including social institutions, and survival is the main target.

The United States of America as a political system did have all of these ingredients and its basic document actively provided for individual liberty to a large extent. However, it is interesting to note that even with the presence of all these conducive factors, United States of America’s Supreme Court decisions – relying on a broad interpretation of due process clause that protected economic liberties – striking down regulations of working conditions were unacceptable for the political leadership of the country.  The period known as Lochner Era, the name is attributed to Lochner v. New York a 1905 decision, came to an end due to President Roosevelt’s threat of appointing more Judges.

This chain of events in the legal history of United States of America is an indication that widening of individual liberties even in a political environment that is having a permissive provision in the basic document, may not be conducive to implementation of an envisaged system by the political leadership.

In this context, someone who is examining the decisions of the Supreme Court of India will be forced to have a re-look at the basic document for identifying from where the Court is reaching many of its conclusions. Such a re-look sans a positive result will keep the reader perplexed.

As mentioned earlier, the structure of Part III rights generate a pattern that is having a logical coherence and it is very evident that Article 21 is for protection of the body of the person.

In the draft Constitution, when some members from the Constituent Assembly canvassed for “due process” clause as in the United States of America instead of the “procedure established by the law” concept present in the draft Constitution, Dr. BR Ambedkar answered in negative. Dr. Ambedkar referred to the discussion with Justice Frankfurter, Judge, Supreme Court of United States of America, wherein the learned Judge highlighted the danger of due process clause and its misuse by the United States Supreme Court.

Dr. Ambedkar in an attempt to properly address the apprehension of campaigners of due process clause, incorporated rights of the arrested person into Article 22. This legal history is very much documented and covered in its entirety in Constituent Assembly debates.

Even with the presence of these materials, the Supreme Court of India had the audacity to bring in “due process” through the back door alleging that to be the intention of the Constituent Assembly.

Rules of interpretation is aiding this improper conclusion of the Supreme Court. The prerogative of courts for determining the rules of interpretation is the fulcrum of almost all the legal maladies. Consider a writer authoring a book and literary critics giving out varied interpretations to the said book. In such a context, if the author is conclusively stating that the meaning he had in mind was something different, the same shall, without doubt, prevail over the critics.

Ironically, as per the rules of interpretation, documented material about the framing of the particular provision including discussion on opting for or rejecting some portion of the same are considered to be external tools with respect to the subsequent interpretation of the same.

When the court is showing an empathy towards such material on the pretext that the given provision is unambiguous and is trying to stick on to the meaning which they have given, courts are, without doubt, becoming creators of law and not interpreters of law. And when this exercise is done on the basic document, that is Constitution, this becomes highly potent. The logical coherence at the theoretical level is getting shattered in this pyrotechnics.

The narration of two examples with respect to level to which thinking process relating to judicial process can be lifted is worth mentioning at this juncture.

Once, there was a conflict of opinion between two great British Judges. One had the view that the judge should come to the court after having fully read the brief filed by the litigants whereas the latter Judge was of the opinion that Judge should hear the submission directly from the lawyer and filed material are only for the purpose of record. The latter Judge was worried about the prejudice that may develop about the case in his mind based on a prior reading of the brief.

Once there was a scholarly article in a popular legal journal wherein the author asked a question and tried to answer it. The question was whether a judge should use public transport system and the answer was that he should not. The reasoning was that a judge should not get exposed.

It is to be noted that these are the nuances to which certain judges and academicians have taken the subject regarding judicial process. A judge when deciding a case is exposed only to the issue at hand and it will be too difficult for the judge to have a broad perspective of the entire legal intricacy as it is capable of being integrated to the limits of the entirety of subjects of the given jurisdiction encompassing the statute at hand. That task is not expected of a judge and is assigned to the other branch, that is the legislature.

What should be the political ideology of a system and how should the same be spelled out in the policies and legal instruments, should be within the scope of the legislature. The scope of judicial review should be only on two fronts. Firstly, whether the executive is acting as per the legal provision. Secondly, whether the legal provision is in tune with the basic document.

In the pretext of interpreting the legal instrument or the basic document, the court should not go to the extent of incorporating its ideology into the same. As mentioned earlier, there is a logical coherence existing between the political ideology, policy, and legal instruments. When a judge is interfering even at a subtle level for a sake of the case at hand, the entire legal coherence is getting damaged. Attempts by Supreme Court through its various decisions, especially with respect to Part III is not only bringing Laissez Faire into the system but also into itself.

The coupled usage of ‘Laissez Faire’ and ‘Alas’ is attributed to a writeup the author read. 

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.