Foresee The Constitution: The Test For The Judiciary

  • September 17, 2017
  • 9:59 pm
  • Riddhi Puntambekar

Since its creation, the Constitutional courts of India have played an important role in shaping public discourse on civil liberties and governance.  In the last seventy years, it has often been through judgements that the democratic interplay between executive, judicial and legislative institutions has come to be defined. The Court has often done this while fulfilling its duty as an anti-majoritarian institution. The 1950’ saw the courts differ with the Government on issues of Zamindari abolition, private property and free speech rights. And in the early 1970’s the Court aggressively diverged with the political establishment over interpreting social and economic rights guaranteed in the Constitution.

What is new in the ongoing conflicts is its nature. Today the challenge in court from the state is unique. For in this contestation rests the Government’s attempt to reimagine the national movement struggle and thereby the very ideological premise of the Indian Constitution. The Writ Courts being the final authority on interpreting the Constitution, serve as an important source for legitimising such change .

Clash on  social economic interpretation The wide powers granted to the Courts by the Constituent Assembly reflect their vision of the judiciary as an anti-majoritarian institution. Over the years, Courts have often correctly clashed with political governments on interpreting the Constitution while at other times they have failed and collapsed in face of  political might. And at times, judicial review has been erroneously exercised.

During the late 1960’s and early 1970’s the Congress Government took two important decisions, first of nationalising banks and the second, attempting through a presidential order, the abolishment of the Constitutional promise of privy purses . Both gave rise to fierce court room clashes .  There was a clear difference of opinion  on  understanding the socio-economic clauses in the Constitution.

In Bank Nationalisation, the Court held that the Constitution recognised the Parliament’s legislative competence to take over banks, but underlined the fact that the right to compensation when obtaining assets could not be illusory. This  even as then  Attorney General Niren De told the courts bluntly that it is  a policy decision and the Court had no business to sit on judgement over the future of economic liberties of Indian citizens. However the bench  headed by  Justice J.C. Shah held that the executive can not violate constitutional rights and claim immunity from judicial review.

While in privy purses the Supreme Court held that though a constitutional amendment could make the change of abolishing privy purses but to do so through the presidential order was clearly violative of the Constitutional guarantee promised under Article 291, 362 and 366 (22) of the Constitution. This judgement was significant as it made the point that political majority could not allow the undermining of constitutional procedures, for these processes  ensured checks and balances, the essence of a democratic state.

Soon after, in 1971, the Congress with the now well known “gareebi hatao” campaign promised to implement pro- poor socialist policies. They won the election, coming to power with 352  Lok Sabha seats. Soon after, In 1975, the Government declared emergency. This period was a true test of judicial independence. The Court was approached by individuals challenging the wide spread detention of Indian citizens. A Bench led by then Chief Justice of India Y.V Chandrachud in the ADM Jabalpur case held that citizens had no right to challenge this incarceration imposed by the Government. This proved to be the darkest hour in the court’s history. A judgement which still haunts the Supreme Court.

Challenge to the premise of the Constitution

As I stated in the beginning, the current political dispensation has  fundamental disagreements with the secular and inclusive values of the  constitution, many of which reflect the principles of the national movement and  those who lead the struggle .  Our constitution is not merely a charter of rights but also a text that safeguards a political vision of India, one imagined by the likes of Jawaharlal Nehru , B.R Ambedkar, K.T. Shah and Sardar Patel. The Sangh Parivar, of which the ruling party is an important component were on the fringes of the freedom struggle and had little role in creating the Constitution.

It is this reason why the Bharatiya Janata Party deems it extremely important to recast the very ideas which our forefathers and foremothers represent. This is where the Judiciary becomes greatly important,as their Judgements are binding on peoples of a nation and  would be the final word on what the Constitution signifies.