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Submissions Made Before The Swaran Singh Committee
by Prof. P.K. Tripathi, *
Member, Law Commission

Cite as : (1976) 2 SCC (Jour) 29

The report of the Swaran Singh Committee (hereinafter referred to as the Committee) on constitutional amendments seeks to recommend changes which ought to be introduced in the basic document with a view to removing difficulties experienced in implementing the directive principles of State policy and in carrying out legislative programmes for the uplift of the Nation generally and for the welfare of the underprivileged sections of the community in particular. The recommendations are comprehensive and envisage amendments more fundamental than any hitherto conceived ever since the commencement of the Constitution.

Before expressing my views in regard to the individual recommendations, I should like to observe that the Committee seems to have proceeded on the basis of two fundamental postulates, namely, that the parliamentary form of government must be retained and that the principle of rule of law must continue to occupy the central place in the scheme of the Constitution. The former constitutes the very first recommendation of the Committee. The latter is obvious from the fact that although very important changes in the jurisdiction of the courts and the manner of exercise thereof have been recommended, the ultimate justiciability of all legislation (except, of course, constitutional amendments) and executive action has been preserved. These constraints are obviously gratifying and most welcome.

The first recommendation of the Committee that the country may retain the parliamentary form of government, and need not go in for the presidential form is, as I have already submitted, the most important and welcome. It relieves the anxiety of those of us who not only believed that in the circumstances of our society the presidential form of government was not preferable, but who also apprehended that it would just not work. Since the issue is now non est, there should be no need to repeat the numerous and imposing reasons in support of this recommendation.

Article 368: The Power of Amendment

The second recommendation is to insert a clause in Article 368 of the Constitution expressly stating that the validity of any amendment of the Constitution carried out in accordance with the procedure prescribed in that Article will not be called in question before any court of law. Article 368 confers the power of amending "by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article". There can be no doubt that under our system, the courts must have the power to say what the Constitution is, but, surely they cannot and ought not to have the power to say what the Constitution ought to be. The latter power can belong only to the representatives of the people.

The real difficulty, however, arises from the decision given by the Supreme Court in 1973 in the Kesavananda Bharati case1, and from the uncertainty which still persists in regard to the true conclusion to be drawn from the eleven opinions of the thirteen learned Judges who constituted the Bench in that case. According to one view elaborately set out by me in an academic article2 published as early as in January 1974, and subsequently noted by Dr P.B. Gajendragadkar in his Mohan Kumaramangalam Lectures in 1975, the Kesavananda Bharati decision has resulted in removal of all fetters imposed by earlier court decisions on the power of constitutional amendments and has imposed no new fetters on that power. If this view is correct, no further amendment of the Article is, in the first place, necessary since Parliament already has the necessary power. And, secondly, if it is considered nevertheless expedient by way of abundant caution to amend Article 368, as suggested by the Committee, such amendment can competently be made by following the procedure laid down in Article 368.

The other, and opposite view on the true conclusion to be drawn from the opinions in the Kesavananda Bharati case is that the Court has by a majority in that case held that the "basic structure or framework of the Constitution" cannot be altered by amending the Constitution in accordance with the procedure laid down in Article 368. If this view is correct, the Supreme Court will have the power to strike down as void any amendment of the Constitution which appears to the Court to alter or subvert the "basic structure or framework of the Constitution". Consequently, not only the amendment proposed by the Committee in Article 368, but also each and every other amendment suggested by the Committee will be effective only if the Supreme Court agrees that it clears the "basic structure" test, i.e., if the Supreme Court holds that it does not affect the basic structure and framework of the Constitution.

Unfortunately, the Government have so far always assumed and acquiesced that the second view as to the effect of the Kesavananda Bharti case is correct. They have deliberately desisted even from presenting the other view before the Supreme Court. That does not debar them from asserting the other view before the Supreme Court on a suitable occasion even at this late stage. Since, in the absence of such a step the fate of most of the amendments suggested by the Committee must remain precarious, it will be a wise strategy to take a test case before the Constitution Bench of the Supreme Court to assert that the "basic structure" doctrine, enunciated by one only out of the thirteen Judges in the Kesavananda Bharati case, does not represent the majority view, and that the majority view, which must be called out from the eleven opinions in that case, and from no other source, is that there are no fetters on the power of Parliament to amend any part of the Constitution, especially the fundamental rights.

Powerful legal arguments in support of this position have already been advanced and further research may be carried out for the purpose. A favourable judgment from the Constitution Bench on this issue will, in the first place, clear the way not only for the amendment of Article 368, but also for all the other amendments that may be finally considered desirable. Also, it will possibly render the recommended amendment of Article 368 itself quite unnecessary.

Power of Judicial Review: An Ambiguity

Inasmuch as the first two recommendations seek only to affirm the status quo, the third recommendation which seeks to introduce far-reaching changes in the structure and powers of the Judiciary, must be regarded the most important of all. It is this recommendation that is bound to receive the most serious consideration from all quarters.

At the outset, it must be said that there is an element of ambiguity about one limb of this recommendation. It has been recommended, on the one hand, that the High Courts will continue to have power under Article 226 to issue the various writs and orders for the enforcement of any of the fundamental rights, and, on the other, it is suggested that the High Courts will no longer have the power to declare any law, either enacted by the State or by Parliament, to be invalid. These two propositions seem to be mutually inconsistent, inasmuch as, quite often, a fundamental right is enforced only by declaring a law to be invalid for being inconsistent with some Article of the Constitution guaranteeing a fundamental right. It is true that executive action is also many times struck down by the courts for violation of a fundamental right, but such occasions are fewer. Article 13 of the Constitution, which prefaces the fundamental rights, says that the State shall make no law abridging or taking away a fundamental right and that any law made in contravention of this direction will be void to the extent of the contravention. It is a 'law' therefore which is generally challenged before the High Courts or the Supreme Court for infringement of a fundamental right, and the usual way to uphold or enforce a fundamental right is to strike down the very basis of any executive action under such law. Consequently, if the object of the recommendation of the Committee is to allow the High Courts to continue to enforce the fundamental rights under Article 226, that object can be fulfilled, in any real sense, only if the High Courts continue to wield the power to strike down the laws which violate the fundamental rights. In the absence of that power the High Courts can hardly enforce these rights.

At present the High Courts can strike down legislation on two possible grounds. They can do so either on the ground that it violates a fundamental right or on the ground that it is beyond the power conferred on the Legislature by Article 246 of the Constitution. It is possible that the Committee intends to deprive the High Courts of the power to strike down legislation on the second ground only. If that be so, in my submission, the amendment is not worth the trouble. Because, in the first place, the occasions when a law is struck down on the second ground are comparatively rare. And, secondly, if the High Courts continue to have the power to declare a law invalid on the first ground which is more frequently canvassed, no useful purposed is likely to be achieved by drawing a distinction between invalidation on the one ground and that on the other.

Having stated this need for clarification, we may return to the recommendation concerning the powers of the Judiciary, which, as already stated, is the most fundamental recommendation of the Committee. I shall consider the effects of the recommendation on the High Courts and on the Supreme Court separately.

Removal of Service, Labour and Land Reform matters

In the first place, it may be observed that the removal of service and labour matters from the jurisdiction of the High Courts is most welcome. No one will perhaps be more enthusiastic about the removal of service matters from the jurisdiction of High Courts than the High Court Judges themselves. Service matters have been occupying a lot of the time of the High Courts. Even petty matters regarding conditions of service have been canvassed before the courts, and the dockets of the High Courts are crowded with these matters which may best be heard by an appropriate tribunal. In fact service matters have on the one hand overburdened the courts thereby preventing them from attending to more serious work and, on the other, they have fostered a sense of indiscipline among the government employees which must necessarily follow from defiant resort to the judicial process. This is not to say that government employees do not ever have serious grievances. But the grievances should be met by resort to independent tribunals who will have a great advantage over the courts inasmuch as they will be able to go into all aspects of the subject-matter of the complaint instead of being confined only to limited procedural and jurisdictional aspect open to judicial scrutiny. They will also be quick, informal, and inexpensive. Needless to say that in order to effect this change amendment will be required not only in Article 226, but also in Part XIV of the Constitution relating to the services.

Labour matters are most unsuited for judicial treatment. Additionally, the delay involved in the judicial process is often so great that the very object of adjudication is frustrated. Recently, for instance, the Supreme Court made the following observation in a labour dispute (Mahabir Jute Mills v. Shibban Lal Sexena3):

"It would thus appear that this writ petition was pending in the High Court for as many as fourteen years with the result that a strange situation has developed today. By the time the appeal has been heard by this Court more than seventeen years have elapsed when the impugned order of the Government was passed and almost twenty years after the management had dismissed 800 workers. It is said that the management, after dismissal of the old workers, had appointed new workers who had by now put in about twenty years of service."

In such a situation, judicial review ceases to have any meaning whatsoever. Moreover, attention wasted on these matters prevents the court from taking up other matters where its attention may be more profitably bestowed.

Besides removing service and labour matters from the jurisdiction of the courts the committee also recommends that revenue matters, matters relating to land reform and procurement and distribution of foodgrains and election matters should be immunised from the writ jurisdiction of the High Courts under Article 226 and from the jurisdiction of the Supreme Court under Article 32. Of these, land reform stands on a distinct footing.

Land is the most vital social asset in our country, and the struggle for India's independence was predicated on the repeated pledges given to the tillers of land that their interest in the land will be restored to them and the unethical interests of the intermediaries will be liquidated. That pledge must be redeemed. Besides, a redistribution of land based on the principle of social justice is also indispensable for securing the most productive use of the land available for cultivation. After about twenty-nine years of independence, therefore, land reform legislation should no longer remain subject to judicial review. The object of judicial review should be 'justice' and nothing else; and since any further delay in the implementation of land reform would only mean perpetration of social injustice, land reform legislation must be completely immunised from judicial control. Any individual grievances in the actual implementation of the legislation must be looked into by appropriate land tribunals. In no case should any courts have the power to issue any stay orders or to create any other procedural impediments in the implementation of such legislation.

Procurement of Foodgrains and Revenue Matters

Procurement and distribution of foodgrains is bound to continue to be an essential item of State policy as long as our food production remains short of or dangerously close to our national requirements. Government has to procure foodgrains not only from growers within the country but also from abroad to maintain buffer stocks and to regulate distribution. Judicial interference in the procurement and distribution of foodgrains can be disastrous.

However, this should be no justification for arbitrary action on the part of local officers, or for clothing them with unnecessarily wide powers. In State of Rajasthan v. Nath Mal4, decided by the Supreme Court in the year 1954, the court struck down a part of the Rajasthan Foodgrains Control Order, 1949. That order authorised certain officers to freeze the stocks of foodgrains held by any person and to requisition them at the rate fixed for the purposes of government procurement. The respondent's 'bajra' stocks were freezed, and requisitioned at the rate of Rs 9 per maund. The Government themselves sold the stocks at the rate of Rs 13/5/4 per maund. The respondent alleged that he had purchased it at the market rate of Rs 17 or Rs 18 per maund. Now, it is one thing to regulate the supply and prices of foodgrains on the basis of a carefully planned national policy declared, as far as practicable, in advance for the benefit of all, and quite another to allow local officers to collect foodgrains from wherever they may find at whatever rates they or the local government may fix. It is this difference that distinguishes a civilised society from one ruled by a despot. The question is not so much of fundamental rights but of a basic approach to the functioning of the governmental machinery, not of any legal technicalities but of substance. Courts should certainly not have the power to frustrate national policy in such vital matters as the distribution of foodgrains, and at the same time local authorities or even State Governments must not be permitted to act as they did in Nath Mal case.

If decisions regarding prices are taken exclusively by the Central Government and are, as far as practicable, announced in advance, much of the problem of arbitrariness will be solved. The courts have never struck down any national policy in this regard, and the Essential Commodities Act has stood the test of judicial review. In Nath Mal case the officers at least proceeded on the basis of authority granted by an order which was ultimately found to be invalid. But, conceivably, in other situations local officers may proceed without such authority. In such cases it should be possible to have some remedy against them. I should suggest, therefore, that instead of taking matters relating to procurement and distribution of foodgrains entirely out of the jurisdiction of the Supreme Court under Article 32 and the High Courts under Article 226, a compromise formula should be adopted. These courts should be prohibited from issuing any stay orders in these matters. This done, it will no longer be possible for them to stay the hands of the Government and to affect the continuity of executive action in fulfilment of the policy laid down by the law. But, at the same time, these courts should continue to have the power to examine and pronounce upon the legality of executive action so that in cases involving truly arbitrary action the individual will not be without a remedy and the administrator will not get the feeling that he is above the law.

The fact is that once the courts cease to have the poser to issue stay orders in these matters practically all the spurious complainants will desist from running to the High Courts or Supreme Court, where the great attraction is not the ultimate order of the court but the stay order which frustrates governmental action and gives the petitioner a false sense of victory even when ultimately he is found to be without a cause. It is notorious that wild allegations are made in the petitions, on the basis of which stay orders are sought, and often successfully obtained, without the Government or the department having any realistic chance to refute those allegations. Then follows the proverbial delay of disposal in the High Courts with the result that the interim order—the stay order—becomes virtually the final judgment of the court, at least for several years to come. Quite often, by the time the final hearing taking place and the judgment is delivered, there is hardly any interest left in the litigation. And, if any interest is still left, the petitioner has just to file an appeal either to the Division Bench of the High Court or to the Supreme Court. This evil can be effectively checked, and arbitrary action on the part of the officials can, at the same time, be effectively discouraged if the courts retain the power to hear and decide the complaints of individuals but at the same time they cease to have the power to issue stay orders.

The same considerations should apply to revenue matters. It is true that over-judicialisation of revenue matters will make the collection of revenues impossible and will encourage large-scale evasion. On the other hand, the taxpayer should not, consistently with the principle of rule of law, be left entirely to the mercy of the tax collector. While the judicial process can be destructive of public interest by its dilatoriness, complete freedom from the restraint of law can result in arbitrariness on the part of the revenue collectors. A balance, therefore, must be struck by providing that the courts will not have the power to grant any stay orders. Already, they seldom have the power to annul legislation regarding taxation—and this is as it ought to be. But they should have the power to decide, in suitable cases, whether the revenue collecting administrators have exceeded the powers given to them by the legislature. As in the case of procurement of foodgrains, here also it may be anticipated that once the courts cease to have the power to issue stay orders or obstruct the collection of revenues or investigation of assets and income for the purpose of taxation, the biggest inducement to rush to the courts will disappear. At the same time, it will be possible for the citizen to resist illegal action made in the name of revenue collection.

Election Matters

As to election matters, in my submission, the best policy will be to allow the courts to continue to enjoy the jurisdiction they have at present, provided that the disputes relating to elections of the President, the Vice-President, the Prime Minister and the Speaker of the Lok Sabha, are withdrawn from the purview of the ordinary judicial process, as provided in the Thirty-ninth Amendment to the Constitution. As has been our unfortunate experience, the judicial process has been abused and exploited by individuals and parties by calling into question the elections of these high dignitaries, on howsoever flimsy grounds. Attempt has been made to prolong litigation in such instances purely for the purpose of propaganda, personal vendetta and gimmickry. Tactics and events, which in litigation relating to ordinary members will pass practically unnoticed, are invested with great national and international significance in the case of these high dignitaries. Also, an erroneous decision which may be corrected in appeal without much ado in ordinary cases acquires the capacity of furnishing explosive political material in the case of these dignitaries. Their cases, therefore, must be tried separetely and in a way which will prevent the exploitation of the judicial process and of the inflammatory potentials referred to above.

In the case of the remaining elections, however, it does not appear that any harm has been done by employing the judicial process. If it is felt that the process is too slow, steps can be taken to quicken the procedure. For instance, the law may provide that the party challenging an election must present all his witnesses and other evidentiary material within three months of the election petition. The High Courts can easily assign judges exclusively to dispose of the election petitions, so that within a year all the election petitions may be disposed of. The grounds of challenge also may be more sharply and precisely defined so that very specific proof is required and quick disposal promoted. However, if it is strongly felt that election matters should be withdrawn from the courts altogether, no great harm is likely to ensue from the implementation of the recommendation of the Committee in this regard.

Article 226, "for any other purpose"

This brings us to the jurisdiction of the High Courts to issue writs for "any other purpose", which the Committee recommends should be abolished. The Committee points out that this is too wide a jurisdiction, and even the Supreme Court does not posses this jurisdiction. In my submission, this reasoning is erroneous.

The jurisdiction of the Supreme Court, even under Article 32 for the enforcement of fundamental rights is, in fact, supernumerary and by no means indispensable. The real jurisdiction of the Supreme Court in India, as in the United States or any other country where analogous systems operate, is the appellate jurisdiction. The appellate jurisdiction of the Supreme Court extends to any matter decided by the High Courts under Article 226 and extends to many other areas in addition. The jurisdiction of the Supreme Court under Article 32 has been conferred by way of experiment and is unique. Possibly, because we were providing for fundamental rights in our Constitution for the first time, it was felt that enforcement of fundamental rights need not, in cases of unforseeable urgency or complexity, necessarily await a High Court decision before the matter can be brought to the Supreme Court. Most of the High Courts, and particularly those in the Part B States, it might have been felt, would take some time to begin to appreciate fully the operation of the fundamental rights. Citizens in those States, particularly, would be in difficulty if they could not, at least on some extraordinary occasions, come straightaway before the Supreme Court.

There was no point, in any case, in conferring on the Supreme Court a further original jurisdiction "for any other purpose". This jurisdiction is intended to correct ordinary illegalities like transgressions of jurisdiction and powers, disregard of principles of natural justice and patent errors of law on the part of administrative officers and tribunals. An effective remedy against those could be provided only by arming the High Court with a corrective jurisdiction, because the High Court is generally close to the scene of occurrence; because, it is, in a sense, a local court, more easily accessible. If the Supreme Court were to look into these complaints against executive officers and tribunals, it would be on the one hand terribly expensive for parties to get justice and, on the other, the Supreme Court would probably suffer a breakdown because of the pressure of work. It is for these considerations that this jurisdiction has not been conferred upon the Supreme Court at the initial stage. However, the Supreme Court does look into these matters when appeals are brought to it. It is well known that the Supreme Court does not have original jurisdiction in ordinary civil or criminal or other matters. Yet, nobody has ever thought of depriving the other courts, who have original jurisdiction in these matters, of such jurisdiction. It is difficult, in my submission, to understand the reasoning that because the Supreme Court does not have the original jurisdiction like the High Courts under Article 226 "for any other purpose", the High Courts who have this jurisdiction should also be deprived of it. The question of abolishing this jurisdiction, therefore, must be considered without reference to the absence of a similar original jurisdiction in the Supreme Court.

In my submission, the jurisdiction of the High Courts under Article 226 to issue writs "for any other purpose" must be retained. It is true that the High Courts have not always functioned ideally in the exercise of this jurisdiction. There have been cases when avoidable interference with administration resulted from the exercise of this jurisdiction. Stay orders have been issued frustrating dedicated administrators on the basis of ex parte allegations which have later been found to be altogether spurious. Some High Courts have gone to the extent of hindering investigation in tax and criminal matters. They have passed orders which they had no authority to pass, and they have functioned as if they were appellate courts rather than courts exercising an extraordinary jurisdiction. They have substituted their own judgment for the judgment of the administrator, which they had no authority to do. Only recently, the Supreme Court, in an appeal from an order under Article 227 (which is for practical purposes governed by the same principles as an order under Article 226) observed as follows:

"This was, indeed, a most unusual order made which hardly justified the exercise of the extraordinary but limited jurisdiction possessed by the High Court under Article 227 of the Constitution. The learned Judge seems to think that while exercising the power of superintendence under Article 227 of the Constitution, he could make any order he thought fit, including an order of remand which properly belonged to a court of appeal."5

It another recent case where the High Court interfered with a finding of fact by the departmental authorities in a case of disciplinary action against a government employee, the Supreme Court observed:

"The High Court is not a court of appeal under Article 226 over the decisions of the authorities holding the departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are violated.
  * * *

The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings."6

These errors in the exercise of the jurisdiction under Article 226, however, do not justify abolition of that jurisdiction. The jurisdiction is wide and there are bound to be errors now and then in the exercise of such a wide jurisdiction. Moreover, the Supreme Court is there to correct occasional errors.

Jurisdiction to ensure rule of law

The jurisdiction to issue writs "for any other purpose" is a vital jurisdiction. It is through this jurisdiction that the bureaucracy is kept within the limits of law. This jurisdiction, properly exercised, cannot obstruct legislative policy. Its real brunt is borne by the Executive. If the executive officers attempt to act without the authority of the Legislature or if they act in a manner in which they are not authorised by the Legislature to act, then only can this jurisdiction be exercised. In short, this jurisdiction enforces the rule of law against the executive officers. In the absence of this jurisdiction, the citizen will have nowhere to go if executive officers act to the prejudice of his liberty or property either without the authority of law or in excess of that authority, or if they proceed arbitrarily without hearing those against whom they decide, or if they misinterpret the law which they are to apply. In the absence of this jurisdiction, in other words, the citizen will be helpless against a lawless administrator or, in other words, there will be no rule of law. There will be all the more reason to retain this jurisdiction after several of those matters like service matters, labour matters, revenue matters, election matters and matters relating to land reform and procurement of foodgrains have been withdrawn from the jurisdiction of the High Courts. Difficulty was felt, if at all, from the improper exercise of the jurisdiction of the High Courts under Article 226 only where some of these matters were concerned, and particularly when the courts granted stay orders and interfered with the prompt administration of the laws concerning these matters. Once these matters are withdrawn from the jurisdiction of the High Courts, or the High Courts lose the power of interfering with the administration in these matters by issuing stay orders, there will be no justification left for removing the jurisdiction of the High Courts to issue writs "for any other purpose".

One very important consideration that must be borne in mind before deciding to abolish this jurisdiction concerns the role this jurisdiction has played in the history of our Republic. It is true that occasionally there have been errors in the exercise of this jurisdiction; but, by and large, it has played a great social role in endearing the Constitution and the institutions established under it to the people. It is this jurisdiction which has given the ordinary man the feeling that whenever injustice is done to him by any administrator, high or low, he has a way open to him by which he can defy that injustice and make the wrongdoer retrace his steps. This consciousness had a great psychological significance. It discouraged in the common man the desire to take the law into his own hands and prevented him from thinking in terms of individual or organised violence. It also fostered in him the reassuring awareness of a sharp social change from the British Raj into Republican India. In my submission, therefore, this is a jurisdiction which ought to be preserved.

It is true that the courts have tended to take too much of power under the Constitution, power, some of which was never intended to be exercised by them. Even so, it will be unfortunate if in correcting that error, we commit another error of taking too much of power away from them. It is also important to notice, in this connection, that the High Courts were slow to interfere with the administration during the early years of the Constitution. It was only later, roughly after 1965, that the High Courts began to expand the bounds of their jurisdiction beyond the contemplation of the text of the Constitution. The reason for the expansionist passion was outside the High Courts. The reason, in my submission, was that a new pace was set by the Supreme Court beginning from the tragic judgment in Golak Nath's case7 It was when the Supreme Court pointed in the wrong direction, and embarked upon a policy of aggrandisement of judicial power in disregard of the text of the Constitution, that the High Courts began to resonate the same note. Given a Supreme Court poised to interpret and enforce the correct spirit of the Constitution, the High Courts can never abuse the jurisdiction under Article 226. The real remedy will, therefore, be to secure that the Supreme Court remains so poised. I shall return to this theme shortly.

Article 227

Before leaving the High Courts, I should make a brief reference to the suggestion to abolish the jurisdiction of the High Courts under Article 227 in regard to tribunals. In my submission, this jurisdiction under Article 227 is superfluous and a duplicate of the jurisdiction already enjoyed by the High Courts under Article 226. Therefore, no significance should be attached either to retaining this jurisdiction or abolishing it. The real Article conferring the jurisdiction is Article 226; and the fate of Article 227 must automatically follow that of Article 226.

As regards the suggestion that the constitutional validity of any legislation enacted by Parliament or by a State Legislature should be decided only by the Supreme Court, my submission is that the suggestion is both inexpedient and harmful. I have already stated that the High Courts cannot exercise the power of enforcing fundamental rights without exercising the power to strike down legislation which falls foul of the fundamental rights. But apart from that, in my submission, there is no justification for depriving the High Courts of the power to strike down legislation either on the ground that it falls foul of a fundamental right or on the ground that it is beyond the competence of the legislature which enacted it. First of all, in very few cases do the courts strike down legislation. Apart from that, if the High Courts commit the errors, the Supreme Court, of course, is there to correct. But, if all the cases where the validity of legislation is challenged were to come before the Supreme Court, that court would be overcrowded. Not in all cases do appeals come to the Supreme Court under the present system. Most of the cases are filtered at the High Court level. It is suggested sometimes that since in a case where a law is struck down by the High Court the Government invariably comes in appeal before the Supreme Court, there is no point in wasting time in the High Courts. This argument overlooks the fact that in many cases where the law is challenged before the High Court, the law is upheld and the Government does not have to come before the Supreme Court. The appellate procedure is not a useless procedure. As already stated, it filters cases for consideration by the higher courts. In any case, if a big load of work is taken away from the High Courts and transferred to the Supreme Court, the number of Judges in the Supreme Court will have to be increased, which would mean that some of the Judges who are adjudicating on the question of validity of legislation while sitting in their own High Courts will, if the recommendation is carried out, do the same job in a new capacity as Judges of the Supreme Court. Already, the Supreme Court has 14 Judges which is the largest any court of its stature, and exercising its kind of jurisdiction, has. Increasing the number of Judges any further would neither add to the quality nor to the prestige of the Supreme Court.

Also, in my submission, the suggestion that there should be a two-thirds majority of not less than 7 Judges of the Supreme Court sitting to declare a law invalid, ought not to be accepted. Such a provision could have had some justification in regard to the validity of constitutional amendments if we accepted the position that the Supreme Court has the power to pronounce upon the validity of constitutional amendments. Of course, that position should never be accepted. In that case, in regard to ordinary legislation, there seems to be no justification for departing from the normal majority rule which is followed not only by the courts in India but also in the United States and in England. It was Mr Justice Hegde who used to criticise the power of the majority of the legislators to make laws. That, in my submission was an unhealthy criticism. Should we, nevertheless, adopt those views of Mr Justice Hegde in regard to the Judiciary? A law which a majority of the Judges of the Supreme Court consider unconstitutional should have no reason to remain on the statute-book as long as we regard the Supreme Court as a proper organ of the State. In my submission, instead of distrusting the simple majorities on the Constitution Benches of the Supreme Court, we should pause and consider why the Supreme Court has, during the past, functioned unsatisfactorily, and we should try to remove the causes for that unsatisfactory functioning rather than consider taking away its powers or denying its majorities the effectiveness which is their due.

The Phonomenon of Creative Role of the Judge

Having expressed my views as to the individual recommendations for amending the various provisions of the Constitution, I should like to submit an overall observation which in my humble view goes to the root of the matter. During the twenty-six years of my study of our Constitution one thing that has definitely struck me is our tragic failure as a nation to appreciate, in any real sense, the creative role of the Supreme Court we have set up under the Constitution. In the United States, from where we have adopted the principle of judicial review of legislation, i.e. the power of the Judiciary to pronounce upon the validity of laws passed by Parliament and by the State legislatures, there is a saying that the Constitution is what the Supreme Court says it is. This saying brings out very pithily the creative role of the Supreme Court in a system where the Court has the power of judicial review of legislation. When a Judge decides whether the restriction imposed by a law on a particular fundamental right guaranteed in Article 19 is 'reasonable' or 'not reasonable' when he pronounces whether 'compensation' means 'just equivalent' and 'market price' of the property acquired, or something less, which the State may reasonably be expected to pay keeping the nature of the property and the social purpose of the acquisition in view; when he has to determine, in the absence of any explicit direction in the Constitution, whether in a conflict between the fundamental right of property and the directive principle enjoining the State to prevent the concentration of economic power in the hands of few, the one or the other must prevail, his role to interpret the Constitution assumes as overwhelmingly creative quality. It is true that in such situation also the Judge insists that his role is only to 'find' the 'rule' laid down by the makers of the Constitution; but the reality of the situation, well recognised by a plethora of juristic authority, is that he is 'making' a new rule to meet a new situation.

This is true of all judges, even those who are excessively cautious or timid, and who would be most unwilling to engage in any creative activity. The case in hand must be decided, and the decision immediately gives rise to a norm or standard which will be followed in subsequent decisions, and so, with the new norm or standard there is already a new rule or law in existence. But, then, all judges are not equally unwilling to create new rules. Some of them are eager to do so. They are referred to as activists. When a judge comes across a word or phrase which is ambiguous and capable of being attributed one out of two or more meanings a judge will have to make a choice whether he is an activist or not. But who decides whether an expression is ambiguous or not? A judge, of course, must decide that too. So, it may happen that an expression may have been regarded by all the judges for several years or decades to be quite unambiguous, and suddenly a judge may find that it is capable of being given on of two or more different meanings, and he may further prefer to give that expression a meaning which his predecessors never thought it was capable of bearing. This judge, is what we call an activist judge. His inclination to give this expression a new and different meaning may arise out of a variety of sociological factors into which we need not go, but what is important to note is that this activist judge is not an unknown phenomenon. It is a phenomenon that must be anticipated. Nor can it be said that the activist judge is a bad judge or good judge; that will depend upon how he uses his activism. Chief Justices Marshall and Teney of the United States were both activities. The former was responsible during his thirty-five years of tenure to create for the Federal Government a number of powers which are not to be found in the text of the United State Constitution and yet without which that Government would have found it difficult to survive and function. And, the latter by his judgment in the notorious Dred Scott case8 plunged the United States into the Civil War which took the Constitution and the country to the threshold of destruction.

The crux of the matter is that whether activist or not, a judge in a court with power of judicial review of legislation has to play a significant creative role. An activist judge only enlarges the ambit of this role but no judge, whether activist or not, can escape it. It is this role which is underlined by the saying that the Constitution is what the Supreme Court says it is. In the United States, it is well known, that a Republican President would only appoint Republicans as Judges on the Highest Court, and a Democrat President would appoint only Democrats. This convention, again, is based on the recognition of the fact that the Constitution and the laws will take their colour from the social outlook of the judges. The fact that the judge is—inevitably and irrespective of his inclination to do so—a 'maker' of the Constitution and of the laws, in a subtle but real way, is thus well understood in the United States, and therefore taken into account in making the appointments on the highest Judiciary, and particularly in making the appointments on the highest Judiciary, and particularly in making the appointment of the Chief Justice of the Supreme Court whose influence on the deliberations of the Court is often greater than that of any other single judge.

We took no account of the phenomenon

Unfortunately, from the very beginning we did not recognise this fact with great clarity. We believed, somewhat naively, that after the Constituent Assembly has prepared the Constitution the function of the judges was merely to apply it. Therefore, whereas we manned our executive and legislative branches with the greatest men we had—men who understood the needs and aspirations of the people, and who dedicated their lives to fulfil those needs and aspirations—we filled our courts with men chosen entirely on the basis of their technical skill. Our Supreme Court Judges, so chosen right from the commencement of the Constitution, have been men of great integrity and ability, but, by and large, they have not been dedicated to the uplift of the poor or to the ideals which inspired the political leadership of the Nation either before or after Independence.

Imagine, for a moment, that Pandit Govind Ballabh Pant had been the first Chief Justice of India. Could it have been possible for a Supreme Court under this leadership to hold, as it did in the year 1954, that 'compensation' guaranteed by the Constitution must mean 'market price' of the property acquired by the State for public purpose, and that land reform legislation could be constitutionally valid only if the expropriated landlords were paid the market price of the land acquired? Thereafter we went on amending the Constitution, once again pinning our faith exclusively in the text of the Constitution without realising the importance of the creative role of the Judiciary, and therefore without any consciously operated choice in the matter of selecting the Judges and the Chief Justices of the Supreme Court. We were fortunate as a nation that for about sixteen years we went on almost without accident. And, perhaps we were fortunate again in having a couple of Chief Justices who, by accident, happened to be sympathetic to socialistic policies and convinced of the need of a strong Centre.

But accident cannot carry a nation all the way, and soon the policy of indiscriminate appointments resulted in the spectacle of a Supreme Court led by a series of activist Chief Justices who were prepared to see ambiguity in the text of the Constitution hitherto unnoticed by their predecessors, and who, in the face of strong textual opposition, struck down one aspect or another of the power of amending the Constitution. Naturally, once the power of amending the Constitution is gone the supremacy of the Judiciary is complete, because then there is no way left to correct the errors of the Supreme Court.

In this process, of course, this element on the Bench was ably aided by a bevy of brilliant advocates on behalf of the affected private property interests. These advocates propounded fantastic juristic propositions like the one that proved crucial in Goeak Nath case, namely, that there is no distinction between the Constitution and ordinary law. These propositions were by no means sound nor irrefutable. But they added a new dimension to forensic argument and posed a new and predominantly academic challenge with which the Judiciary as well as the Bar were not very much at home. This is amply borne out by the fact that in Golak Nath none of the lawyers arrayed on the government side nor any of the minority judges could meet that challenge. The majority judges naturally found this a very agreeable situation and made the most of it. The Golak Nath challenge was later met outside the Court by academic writing9 so effectively that the Court had no difficulty in overruling Golak Nath in Kesavananda Bharati case. But judicial activism was fed again by brilliant advocacy on behalf of private property on yet another set of juridical illusions, and the uncertainty is perpetuated.

A Conscious Appointments Policy is Indispensable

The lessons are very clear. It is to be understood and underlined that as long as judicial review retains its place in the Constitution the judge will legislate; he will have to. And in this legislation his personality, and his equipment as a constitutional lawyer will both continue to matter. It is imperative, therefore, that great care and conscious effort are expanded in the choice of the judges. Persons to be elected as judges must not merely be acquainted with technicalities of the law but, what is more, they must be men who do not regard socialistic principles as insufferable nonsense and they, or at least some of them, must possess a sound academic base to ensure that the court is not trapped in the meshes of doctrines and concepts set by the ingenuity of clever advocacy. Choosing judges with care, and consciously avoiding those who are, by conviction or circumstance, hostile to legislative programmes and policies for improving the lot of the common man, or for promoting the directive principles of social policy enshrined in the Constitution is not to be confused with appointing spineless judges. The two things are entirely different, howsoever interested elements may try to confuse the one with the other. As I have already mentioned, a Republican President in the United States invariably appoints Republicans on the Supreme Court. No one has ever suggested that the judges of the United States Supreme Court are spineless. The story goes round that soon after appointing Earl Warren as Chief Justice of the United States Supreme Court, President Eisenhower discovered that the new Chief Justice and his Supreme Court were giving judgments he would never like to have; and he is supposed to have remarked that Warren's appointment was the "greatest goddamned mistake of my life". When Chief Justice Taney died, President Lincoln had the opportunity to appoint a new Chief Justice; and he finally appointed Secretary of the Treasury, Salmon P. Chase, to that great office. What he wrote to a friend before making his choice of the Chief Justice is pertinent:

"There are three reasons in favour of his appointment . . . . First, he occupies the largest place in the public mind in connection with the office; then we wish for a Chief Justice who will sustain what he has done in regard to emancipation and legal tenders. We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it."10 (emphasise mine)

The italicized words will clearly show that the idea is not in the least to appoint a spineless judge—who is indeed no judge at all; but the idea is to make an intelligent guess and prediction as to how a judge will be disposed to certain legislative policies and programmes, and what, broadly speaking, will be his view of the Constitution and the powers of the various organs of State. A government which does not have the will or the equipment to make this guess must inevitably pay the price. It must not be surprised if policies and programmes which found no popular support at the hustings try to fight a last-ditch battle in the courtroom pinning their hope in the sociological make-up of the Judiciary. Nor should there be any surprise if opposition parties protest when judges temperamentally suited to their way of thinking are bypassed in appointing a Chief Justice, and claim that they alone stand for an independent Judiciary. It is to be reckoned as a great success of their propaganda machine, if they can make the people swallow that an independent judge means only the one who decides according to the philosophy of the opposition parties, and that it is wrong for the Government to appoint the other kind.

In my submission, therefore, a bold, imaginative and perspicacious policy of judicial appointments, especially those on the Supreme Court, will go a long way to meet the difficulties that have presented themselves in the working of our Constitution. I should submit, with all the sincerity at my command, that the only thing that has gone wrong with us in regard to the functioning of the Constitution is the absence of such a policy. We have pinned too much faith in the text and its amendments and devoted too little attention to the inevitable creativity of the judicial function. Once we remove that error few constitutional amendments will be necessary; and just as surely, unless we do that no constitutional amendment will be of much avail.

Given a properly composed Supreme Court, the High Courts and their constitutional powers do not really matter so much. It is the Supreme Court that is the pacesetter. After all, the High Court Judges look to their superiors in the Supreme Court for appreciation both for job-satisfaction as well as for promotions to the highest Court. Also, the Supreme Court has ample appellate powers to correct the errors of the High Courts; and the High Courts, in any case, are bound to follow the law laid down by the Supreme Court.

The present-day Supreme Court

One can already discern a definite change of mood in the Supreme Court. There is a world of difference between the Court of 1970 or 1971 and the Court of today. And it is really an irony that while the damage to legitimate parliamentary authority was done by the Court of 1967-73 the burnt of criticism and prospects of loss of power are being suffered by the Court of 1976, when the Court, perhaps for the first time in our history, appears to be poised to function as an effective and potent instrument of the social policy envisaged by Pandit Jawaharlal Nehru and his colleagues in the Constituent Assembly. The entire situation seems to bear a tragic resemblance to the episode of war planes bombarding home-territory in an atmosphere of utter confusion.

Whether by accident or by design the present Supreme Court, which may aptly be called the Ray Court after its Chief Justice, is very different from the Subbarao Court or the Hidayatullah Court or the Sikri Court which have preceded it in succession and which were marked by an anti-Parliament and sometimes anti-Centre activism. The mood of the Ray Court is reflected in the few quotations earlier cited in this presentation.

It will be an irony if the powers of this Court were to be clipped for the damage caused by its predecessors whose policies it is avidly engaged in reversing. The need, in my submission, is not to weaken this Court but to sustain and strengthen its qualities, to institutionalise its mood and to perpetuate its image. That can be done, as already pointed out, by adopting a bold and consciously enlightened appointments policy. The Chief Justice of India, whose personality makes considerable difference, may as often as necessary be appointed from outside the Court. In any case, he should not be appointed according to the lazy rule of seniority, nor should the other Judges on the Supreme Court be appointed by the equally lazy rule of merely promoting High Court Judges or Chief Justices. It is heartening to know that High Court Judges are being transferred. In fact, there are alarming symptoms of growing parochialisation of the High Court. The proper thing, in my submission, will be to lay down the principle that no lawyer will be appointed judge in his own High Court, i.e., in the High Court before which he has built his practice. This will restore the health which the High Courts seem to be fast losing. And, ultimately, as I have already submitted, the High Courts will take the colour of the dominant group on the Supreme Court. That is inevitable.

This conscious attention to the composition of the Supreme Court and the High Courts, in my submission, will be a much more effective remedy to resolve the problems before the Nation than any simplistic solutions based on amending one part of the Constitution or the other. In my submission, it is not the Constitution made by Pandit Jawaharlal Nehru and his collaborators that has failed, it is the operators, and in particular the Supreme Court that has failed—a Supreme Court constituted, from time to time, almost casually and without the sense of seriousness and the vision that ought to be regarded indispensable in constituting this sensitive and important institution.

The remaining recommendations

That takes me to the remaining recommendations of the Committee regarding the disqualification of membership of Parliament and State legislatures and Centre-State co-ordination with all of which I agree. I should lay particular stress on making 'education' a concurrent subject. In my humble view, as long as 'education' continues to remain the exclusive domain of the States the backward States will continue to get more and more backward. State Governments, particularly the governments of the backward States, have shown neither the will nor the ability to raise the standards of education. If success in I.A.S. examinations, which is based on merit, is regarded a measure, the backward States have further lagged behind, with the result that citizens residing in these States have begun to suffer from an inferiority complex which should not be countenanced in Republican India. The true cause of this malaise is the deteriorating quality of their universities. If by universities we mean institutions where knowledge is advanced and created, there are very few in the country, and none in the backward States. Even the assistance given by the U.G.C. does not reach the backward States, because the U.G.C. has no jurisdiction over undergraduate education. Our need for universal literacy also cannot be fulfilled unless the Centre has a say in the matter of education. For these and several other very weighty reasons 'education', which is fundamental to the vigour and advancement of the Nation, must become acconur rentsubjects.

* On May 18/19, 1976. Return to Text

  1. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. Return to Text
  2. Kesavananda Bharati v. State of Kerala, Who Wins?, (1974) 1 SCC Journal 3. Return to Text
  3. (1975) 2 SCC 818, 822. Return to Text
  4. AIR 1954 SC 307: 1954 SCR 982. Return to Text
  5. Per Bhagwati, J. In Babhutmal v. Laxmi Bai, (1975) 1 SCC 858, 862. Return to Text
  6. Per Ray, C.J. in State of A.P. v. C. Venkata Rao, (1975) 2 SCC 557, 562, 563. Return to Text
  7. I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643: (1967) 2 SCR 762. Return to Text
  8. Dred Scott v. Sandford, (1856) 19 How 393. Return to Text
  9. See P.K. Tripathi: Some Insights Into Fundamental Rights, Bombay University (1972). Return to Text
  10. C.S. Bates: The Story of the Supreme Court, Bobbs Merrill Co. Inc., 1938 at p. 172. Return to Text
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