THE SILENCES IN OUR CONSTITUTIONAL LAW*
by Fali S. Nariman+
Cite as : (2006) 2 SCC (Jour) 15
"Under all speech and writing that is good for anything, there lies
a silence that is better...."Thomas Carlyle
Milton's Paradise Lost is one of the great epic poems in English literature. It is also one of the longest. Milton's critic Dr. Samuel Johnson once said that "he could not wish it longer". The same can be said about our Constitution: as enacted, it contained 395 articles (with a Bill of Rights) and an appendix of eight schedules, occupying in the official edition 251 printed pages. Yes, one could not wish it longer!
Produced after two-and-a-half years of debate and discussion, the Constitution of India did not find much favour with the leading Commonwealth historian of the time: Sir Ivor Jennings. In 1951 the University of Madras requested Jennings to deliver a lecture on the Indian Constitution and he was critical of its provisions. Jennings commenced his address by summing up our Constitution in one cynical sentence: "Too long, too rigid, too prolix." And to add insult to injury, he also said that the dominance in the Constituent Assembly of lawyer-politicians had contributed to the complexity of its provisions! But harsh words, like chickens, sometimes come home to roost!
In the nineteen sixties the same Ivor Jennings had been commissioned to write a new Constitution for Sri Lanka then known as "Ceylon". Despite all precautions taken in its drafting, that Constitution lasted only seven years!
The first lesson about written Constitutions, then, is that they do not function on their own. A special effort has to be made by its custodians, those entrusted with its functioning to work them.
It is under this "lawyer's Constitution" (as Jennings sneeringly characterised it) that we have regularly held elections every five years on the basis of adult franchise: as many as 650 million people went to the polls in May 2004, and despite the misgivings of constitutional historians, whenever Governments have been voted out of office, whether in the Centre or in the States, transfer of power has been according to its provisions: even if occasionally not in consonance with its true spirit.
I recall with pride Prime Minister James Callaghan's tribute when Mrs Gandhi was defeated at the polls in March 1977. Callaghan said that the ultimate mark of a true democracy is the willingness of a Government defeated at the ballot box to surrender power peacefully to its opponents. This is what had happened when the Janata Party swept the polls. And this is what happened again when those who held power since March 1977 were in turn defeated at the elections of 1980, and Mrs Gandhi was swept back to power.
Truly then, this Constitution of ours embodying a parliamentary form of government was not only a compulsion of geography, shaken and divided by the "earthquake" of the Partition in 1947, it was also a compelling accident of history. In 1947, the British hurriedly left us, somewhat in pique. Amidst the trauma of the Partition that followed, the members of India's Constituent Assembly, motivated by the urgent need to preserve the political and cultural unity of what was left of British India, valiantly rose to the occasion, and forged the document that became the Constitution of India.
The life of a written Constitution, like the life of the law, is not logic (or draftsmanship), but experience. And fifty-five years of experience on this subcontinent has shown us that it is easier to draft a Constitution: than to work it. Pakistan and Bangladesh have drafted and crafted different written Constitutions at different times, but they have been interspersed with long periods of martial law and civil and military dictatorships.
We will never be able to piece together a new Constitution in the present day and age even if we tried: because innovative ideashowever brilliant, howsoever beautifully expressed in consultation papers and reports of commissionscannot give us a better Constitution. In Constitution-making there are other forces that cannot and must never be ignoredthe spirit of persuasion, of accommodation and of toleranceall three are at a very low ebb today.
This is one reason why I believe that the great commentary of Dr. Durga Das Basu on our written Constitution will never become obsolete nor dated.
Long as our Constitution is, the commentaries of Dr. Durga Das Basu from Kolkata and of H.M. Seervai from Mumbai are longerbut they are both erudite and informative. The two commentators had vastly different approaches to the subject: Seervai (from Mumbai) was more historical and critical of many of the interpretations of the Constitution by India's Supreme Court. Durga Das Basu (from this City of Joy) had the distinction of writing a comparative study which made it more interesting since he gave ready references to comparable texts of Constitutions from different parts of the world: in fact by his work he introduced a new school of jurisprudence in India: it goes by the name of "constitutional comparativism".
When Justice Chittatosh Mookerjee asked me a couple of months ago to deliver what he told me was to be the First Durga Das Basu Endowment Lecture I felt honoured. Because I have known the Judge for several years and have known enough of him to respect and admire. His judicial wisdom is now legendary, ever since his novel but successful handling as Chief Justice of Bombay of a complaint made there by about 200 lawyers regarding the questionable conduct of four of its sitting Judges. No one could have handled it better, but that's another story. When I was asked a couple of months ago by Chittatosh to deliver this lecture I could not help thinking to myself that the request was perhaps 50 years too late. On further reflection however I think it is not, because in this, as in other fields, distance does lend enchantment to the view.
After half a century a written Constitution takes on a life of its own especially in a country that is wedded to the concept of judicial review. That has been the case with our Constitution. After fifty-five years of its working I believe we are a little wiser about its provisions.
The treatment by the two great commentators of our Constitution; one from Western India and the other from Eastern India, are different and divergent and some one, some day, will doubtless assess the respective contributions of these great jurists to our constitutional law. It will be a fascinating exercise: but in a memorial lecture like this, one can only choose a particular aspect of the Constitution which is of special interest to the speaker.
I have chosen to speak not on the length or structure or even on the main aspects of our written Constitution but on its silences. A practising lawyer always looks for precedents and in choosing my subject my precedent is a decision of the Privy Council in a case originating from Ceylon (now Sri Lanka). It is known as Liyanage case1 (1965): it concerned a group of the appellants who took part in the year 1962 in an abortive coup against the established Government. The appellants were put up for trial, not under the ordinary criminal law but under a special law, not before the ordinary courts but before a Special Court of three High Court Judges nominated by the Chief Justice of Ceylon: they were to be tried under the special law which altered the fundamental law of evidence so as to facilitate their conviction, a law which deprived the Judges of their normal discretion as to appropriate sentences; the Judges appointed under the special law were compelled to sentence each offender on conviction to not less than ten years' imprisonment and were compelled to order confiscation of his possessions even though his part in any conspiracy might have been trivial. After a very extensive trial the appellants were duly convicted and sentenced under this special lawa sentence confirmed by the Supreme Court of Ceylon. But on appeal, the Privy Council held that the convictions could not stand because the special law violated a basic unwritten premise in the Constitution of Ceylon viz. that judicial power was exercisable only by the established judicature, not by an ad hoc court as constituted and as constrained by the limitations imposed by the special laweven though the Court comprised of sitting High Court Judges. The plea of counsel for the Government of Ceylon was that under the then Constitution based as it was on the Westminster model (like the Constitution of India), there was no express vesting of judicial power in the established courts such as was to be found, for example, in the Constitution of the United States or in the Constitution of Australia. But the Privy Council said that this circumstance was not decisive. After tracing the establishment of the judicial system in Ceylon from the days when it was a British Colony it said that although there was no express mention made of vesting of judicial power in the established courts of the land there was, under the Westminster type Constitution, provision for the appointment of the High Court Judges and a provision that they would not be removable except by the Governor General on an address of both the Houses of Parliament. "These provisions", said Lord Pearce1,
"manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution's silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by, the executive or the legislature".
Inspired by this passage in Liyanage case1, the subject I have chosen for this Endowment Lecture is "The Silences in Our Constitutional Law". It is a subject prompted also by more than fifty years of our own constitutional history and experience.
Ladies and gentlemen, the silences in the Constitution of India are as profound as are its written provisions. Let me explain.
Take the opening words of our Constitution. WE THE PEOPLE of India (hereby adopt, enact and give to ourselves this Constitution). If it means the people of India who were born long before 1950 (as were the Constitution's Founding Fathers) then it must surely be out of tune with the vast majority of the people of India: born after 1950. But no. There is hidden magic in these words WE THE PEOPLE.
The same three words are also the opening words of the world's oldest Constitution, that of the United States. And the answer to the conundrum as to what relevance a written Constitution has for the overwhelming majority of its people who were not born before its promulgation and therefore not included in the phrase "We the People" was provided by a shrewd political observer of the Constitution of the US. She said, yes it was a woman, a Congresswomanshe said (referring to the US Constitution):
"We the People" a very eloquent beginning. But, when that document was completed on 17-9-1787, I was not included in that "We the People". I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But I realise that it is through the process of interpretation and court decision that I have been finally included in "We the People".
Original thought. Nicely put. Well that in a nutshell describes what has been the role of our Supreme Court, by interpretation and court decision it has broadened the reach of our Constitution's provisions: it has included within the range of its beneficent provisions those who were not born when India got independence.
That is why I am proud of our Judges, present and past, who have interpreted and sustained this Constitution, framed for only 350 million people, most of whom are not alive today. That is why I am proud of people like Durga Das Basu who made it his life's ambition to interpret and explain its provisions to the people of India, to lawyers and non-lawyers alike. This is one of the ways in which a written Constitution is made to grow into a dynamic living document.
Next to the opening words of the preamble perhaps the single most effective example of "hidden meanings" was provided by our own Supreme Court when it fashioned what is now known as the basic structure doctrine. Let me briefly expound on it.
Although supreme, the Constitution of India is not immutable. Article 368 expressly provides that notwithstanding anything in this Constitution Parliament in exercise of its constituent power may amend any provision of the Constitution (mark the word "any") in accordance with the procedure laid down in that article i.e. by the same body which enacted laws at the Centre, the two Houses of Parliament: the House of the People (Lok Sabha) and the Council of States (the Rajya Sabha).
Within a year of the Constitution being brought into force, Parliament passed the Constitution (First Amendment) Act, 1951. It consisted of the same members who, sitting as a Constituent Assembly, had adopted the Constitution on 26-1-1950. The First Amendment dispensed with the payment of compensation for taking over large estates, mainly zamindaries; these large estates were permanently granted over a century ago to families loyal to the Mughal emperors or to the British Raj. The First Amendment introduced two new articles in the fundamental rights chapter (Part III) Article 31-A and Article 31-B: they provided that legislation for effectuating agrarian reforms were outside the pale of protection of Article 19(1)(f) (the fundamental right to property) and the acquisition of such property as part of a measure for agrarian reform did not need to comply with the requirement of payment of compensation guaranteed under Article 31. Article 31-B was an innovation, it provided that whatever enactments (whether of Parliament or of the State Legislatures) which by constitutional amendments were included in the Ninth Schedule to the Constitution they should be deemed never to be void or to have never become void because of any infringement of fundamental rights, any judgments of the courts to the contrary notwithstanding.
It was the challenge to the First Amendment that raised for the first time the question whether Parliament could by a special majority and after following the requisite procedure prescribed in Article 368 amend the Constitution so as to abridge or take away any of the fundamental rights set out in Part III of the Constitution.
In a unanimous opinion handed down in October 1951 a Bench of five Justices of the Supreme Court (in Shankari Prasad Singh Deo v. Union of India2) unhesitatingly answered the question in the affirmative. With further constitutional amendments making more inroads into fundamental rights (like the Fourth Amendment of 1955 and the Seventeenth Amendment of 1964) the question of judicial review of constitutional amendments was attempted to be reopened. In October 1964 in the case of Sajjan Singh v. State of Rajasthan3 a Bench of five Judges of the Supreme Court was not so emphatic in its view as it was in October 1951; it reiterated that Parliament could by constitutional amendment abridge or take away fundamental rights, but it did so only by majority of 3:2.
The strong reservations of the minority of two Justices in Sajjan Singh case3 prompted Chief Justice Subba Rao to constitute a larger Bench (in fact a Full Court of eleven Judges) to reconsider the constitutional validity of the First, Fourth, and Seventeenth Amendments to the Constitution.
Chief Justice Subba Rao never needed much prompting to constitute a larger Bench to overrule a judgment which did not give full play to the chapter on fundamental rights. S.R. Das, Chief Justice of India, on his retirement in September 1959, made an amusing farewell speech which is published in the Law Reports. After referring to some of his other colleagues in lighter vein, he was particularly jocular about "Brother Subba Rao":
"... and then we have Brother Subba Rao who is extremely unhappy because all our fundamental rights are going to the dogs on account of some misconceived judgments of his colleagues which require reconsideration!"
Well, the Full Court of eleven Judges constituted by, and presided over, by Justice Subba Rao sat in Golak Nath v. State of Punjab4 and the judgment rendered in that case gave rise to an acute controversy between the legislative and judicial branches of the State.
In Golak Nath4 it was held by a narrow majority (6:5) that constitutional amendments were "laws" under Article 13 of the Constitution and as such subject to the mandate of that article, the State could not abridge or take away fundamental rights by enacting laws, whether in exercise of legislative power or in exercise of constituent power. The First, Fourth and Seventeenth Amendments were declared invalid, but only prospectively. Part III of the Constitution (the Bill of Rights Chapter) was placed on a pedestal beyond the reach of the amending power.
John Marshall was the Chief Justice of the Supreme Court of the United States from 1801 to 1835 and he is known in America as "the Great Chief Justice". Marshall once said: "Never seek to enlarge judicial power beyond its proper boundary, nor fear to carry it, to the fullest extent that duty requires." Inspired by the second part of the dictum, and by his own conception of the pre-eminence of fundamental rights, Chief Justice Subba Rao (in Golak Nath4) carried judicial review to the fullest extent, almost to breaking point. Many people, many reasonable people, regretted that the great Judge did not pay heed to the first part of Marshall's dictum.
At first the reaction to Golak Nath4 especially in the halls of the legislatures was one of stunned surprise. The pace of constitutional amendments slowed down. But as the implications of the judgment in Golak Nath4 became more widely known and more openly criticised, the attitude of the elected representatives of the people changed from a state of initial shock to one of defiance.
In 1971, Parliament passed in quick succession the Twenty-fourth, Twenty-fifth, Twenty-ninth Constitutional Amendment Acts. It was declared that the power of amendment was a constituent power and the provisions in Article 13 empowering courts to declare laws passed in contravention of fundamental rights void would not apply to laws enacted under the constituent power of amendment. Next, the fundamental right requiring payment of compensation for acquisition of property Article 31(2) was substituted. The new provision declared that property of any description whether large or small could be acquired for public purposes if the law provided for payment of an amount and no such law could be called in question in any court on the ground that the amount fixed or determined by the law was not adequate or that the whole or any part of such amount was given otherwise than in cash.
An angry response to what was believed to be a misuse of the power of judicial review also produced another piece of heavy artillery: Article 31-C. That article also introduced by the Twenty-fifth Amendment provided that notwithstanding anything contained in Article 13 no law could be challenged which gave effect to the policy of the State towards securing two of the main objectives of State policy mentioned in Part IV of the Constitution viz. towards securing that the ownership and control of the material resources of the community were distributed for the common good Article 39(b) or towards securing that the operation of the economic system did not result in the concentration of wealth and means of production to the common detriment Article 39(c). Any law giving effect to such policy was deemed not to be void on the ground that the law took away or abridged the fundamental rights conferred either by Article 14 (equality clause), or by Articles 19(1)(f) or 31 (the property clauses). The Constitution (Twenty-ninth Amendment) Act, 1972 added further enactments in the Ninth Schedulemainly Acts of the State Legislatures so as to save them from attack under Articles 14, 19 or 31 on the ground of contravention of fundamental rights.
The stage was now set for the grand challenge. If Golak Nath4 was rightly decided, the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments were void; if not, the powers of Parliament (and the powers of future Parliaments) were severely curtailed.
The Full Court (then consisting of 13 Justices) presided over by Chief Justice Sikri sat from 30-11-1972 hearing arguments on the correctness of the decision in Golak Nath4, and as to whether there were any limitations on the power to amend the Constitution. The hearing lasted, almost continuously, till the third week of March 1973, a period of four months. As one of the Justices put it:
"The largest Bench sat for the longest time to decide issues described as being of grave moment not merely to the future of this country but to the future of democracy itself." (Kesavananda case5, SCC p. 960, para 1999)
The case was titled His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala5 but is better known as Kesavananda5 (or Fundamental Rights case). Almost at the start the reasoning in Golak Nath4 was given up. What was pressed however was that there had to be some limitations on the amending power. The debate centred around the extent of such limitations. The Judges plumbed the depths of the silences in our Constitution to search for limitations but there was no unanimity.
The Court was once again sharply divided except on the opinion that Golak Nath4 should be overruled. Six Judges (Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ.) held that the power of amendment conferred by Article 368 was wide and unfettered, it reached every part and provision of the Constitution including the chapter on fundamental rights, and that there were no inherent limitations on the amending power. Six other Justices (Chief Justice Sikri, Shelat, Hegde, Grover, Ray and Jaganmohan Reddy, JJ.) held that the power of amendment was limited but they were not all agreed on the extent of such limitation. The Court was thus evenly divided. It was Mr Justice Khanna's judgment that tilted the balance.
The Great Justice Khanna, I always call him. Khanna, J. held that the power of amendment under Article 368 was plenary, that it included the power to amend various articles of the Constitution and was not fettered by any provision in Part III (the fundamental rights chapter), that no fundamental right (only because it was a fundamental right) could claim immunity from the amending process, and that the power to amend included within itself the power to add, alter or repeal the various articles of the Constitution. BUT (with a capital B-U-T) he also held (and this is now the ratio in Fundamental Rights case5) that the power to amend under Article 368, wide as it was, did not include the power to abrogate the Constitution or to alter its basic structure or framework, hence the doctrine of basic structure.
The opinions first in Golak Nath4 and then in Kesavananda5 were products of divided courts. They aroused controversy and contention but the basic structure theory has come to stay. It was evolved from the great silence in our Constitution: after all the Constitution did provide that it could be amended but surely it did not say that it could be abrogated, or that its basic features could be thrown to the winds.
Though an innovative doctrine in disputes relating to property rights, the basic structure doctrine has long survived the deletion of the right to property from the fundamental rights chapter.6
Durga Das Basu himself was critical of the judgment in Kesavananda5. In his commentary he wrote:
"The Court took upon itself the task of differentiating between the essential and non-essential features of the Constitution. No such power was vested in the Court by Article 368 either expressly or by implication."
Dr. Basu's view was that of the strict legal constructionist but the Supreme Court was not bound by a literal view of the Constitution. Great cases are often shaped by events as Justice Cardozo famously said: "the hydraulic pressure of great events do not pass Judges idly by". Though of doubtful legal validity the basic structure theory was the reaction of a court that was apprehensive of an overenthusiastic and an overpowering one party majority in Parliament. But the doctrine, even though illogical, has come to stay and it was firmly cemented in 1975 because of an overenthusiastic response of the Government of the day to a verdict of the Allahabad High Court.
Prime Minister Indira Gandhi lost the election petition filed against her in June 1975 in the Allahabad High Court; her advisers (too ready to please) recommended not only an appeal to the Supreme Court but also a drastic constitutional amendment. Whilst Mrs Gandhi's appeal was pending in the Supreme Court, a Bill amending the Constitution was rushed through Parliament. The Constitution Thirty-ninth Amendment Act, 1975, provided among other things, that disputes regarding the election of a person who becomes Prime Minister was not to be decided in courts but by a special body named by Parliament. It also provided that election laws would not be applicable to the Prime Minister and would not be deemed over to have been applicable to the Prime Minister and that notwithstanding any order of any court the election of the Prime Minister would never be deemed to have become invalid or void: the election of the Prime Minister would continue to be valid in all respects.
Strange as it may sound, it is this monstrous amendment that helped to save the basic structure theory from death and destruction. The Thirty-ninth Amendment of the Constitution was a crude attempt to pre-empt the Supreme Court from deciding the election appeal of Mrs Gandhi. But fortunately for the country, the Court successfully resisted the attempt relying for the first time after Fundamental Rights case5 on the basic structure theory. In Indira Nehru Gandhi v. Raj Narain7 the Court established that judicial review and free and fair elections were a fundamental part of the Constitution beyond the reach of the amending power: the Constitution does not say so, but this was inferred by the Supreme Court from the Constitution's silence. Later, in 1980, the Court applied the doctrine of basic structure in a challenge to a provision in the Constitution Forty-second Amendment Act, 1976. This provision shut out all judicial review of constitutional amendments. No amendment to the Constitution (it said) made in accordance with the procedure in Article 368 could be called in question in any court on any ground whatever. But in Minerva Mills8 a Constitution Bench of the Court following the ratio in Fundamental Rights case5 declared that the exclusion of judicial review violated the basic structure of the Constitution and struck down this part of the Forty-second Amendment.
The power to declare the law, said a great American Judge carries with it the power and, within limits, the duty to make law where none exists. In reading implied limitations in the amending power, the Supreme Court of India had made new law. As Dr. Basu put it in his classic commentary (on the Constitution of India9) "the doctrine of basic features had been invented by the Supreme Court in order to shield the Constitution from frequent and multiple amendments by a majoritarian Government".
Assumption of power by which one organ of Government is enabled to control another has been characterised as political power. In asserting the basic structure theory the Supreme Court of India has, in this sense, asserted political powerin the guise of judicial interpretation. That is why there are so many critics of the basic structure theory. By propounding it the guardians of the Constitution had at one bound become guardians over the Constitution. Constitutional adjudicators had assumed the role of constitutional governors. It must be admitted that the criticism is valid. But equally valid is the stark fact that Parliament in its wisdom has not sought any confrontation. If it had, the casualty would have been the Supreme Court. When the Janata Government endeavoured to recast Article 368 (the amending clause) and introduced provisions for a referendum for effecting changes in the basic features of the Constitution, the attempt failed.
The Forty-fifth Amendment Bill could not secure the requisite two-thirds majority in the Rajya Sabha only because the opposition party in Parliament, the Congress(I) which had been the most vociferous advocate of an unlimited power of constitutional amendment, simply would not vote for it. Strange are the ways of politics and of politicians! Parliament has also not chosen to re-enact afresh a constitutional amendment containing an ouster of jurisdiction clause in Article 368 after an earlier attempt at such an enactment (part of the Forty-second Amendment) was struck down by the Court in 1980. As a matter of fact five years after the basic structure theory was first propounded in the Fundamental Rights case5, Parliament gave implicit recognition to it in the Constitution (Forty-fourth Amendment) Act, 1978. It provided that the fundamental right of life and liberty guaranteed by Article 21 of the Constitution could never be suspended (by law or constitutional amendment) even during an emergency: simply because the right to life and liberty were basic to the constitutional framework. The basic structure theory had been woven into our constitutional fabric.
In July 1986 just before his retirement Chief Justice, Warren Burger of the US Supreme Court, was interviewed on television by Mr Bill Moyers. In the course of his interview C.J. Warren Burger said:
"Congress (he was speaking of the US Congress) can review us and change us when we decide a statutory question, and frequently do. But when we decide a constitutional issue, right or wrong, that's it until we change it. Or, the people change it. Don't forget that. The people made it and the people can change it. The people could abolish the Supreme Court entirely."
"How?" asked Bill Moyers.
C.J. Warren Burger's answer was: clear and categorical: "By a constitutional amendment."
He was right. If the people really willed it, they could. But no one in the United States is going to abolish the US Supreme Court, and one can safely predict, with equal confidence, that no one is going to abolish the Supreme Court of India nor the concept of judicial review. Judicial review will remain an integral part of Indian constitutional law and practice: simply because the Supreme Court, relying on popular opinion, has definitively said so. Undoubtedly, primary control on governmental activity in this as in any other democracy is with the people. The power which the Supreme Court of India exercises rests ultimately upon their tacit approval. But experience has taught us to take (what Madison once described as) "auxiliary precautions". The basic structure theory was the response of an anxious and activist court to the experience of the working of the Indian Constitution during the first twenty-three years. It remains today as an auxiliary precaution against a possible tidal wave of majoritarian rule, do remember (and if you are too young to remember do make a note of a stark fact in our constitutional history) that majoritarian rule was the political order of the day for nearly forty long years from 1950 right up to the late nineteen-eighties.
But it is not only Judges who have plumbed the depths of silence in our Constitutionso have our Presidents.
The constitutional position of India's President is similar to that of England's Sovereign: described in elegant prose more than a hundred and fifty years ago by a great political journalist of his time:
"To state the matter shortly, (says Walter Bagehot) the Sovereign has, under a constitutional monarchy, three rightsthe right to be consulted, the right to encourage, and the right to warn. And a king of great sense and sagacity would want no others. He would find that his having no other would enable him to use these with singular effect. He would say to his (First) Minister: 'The responsibility of these measures is upon you. Whatever you think best must be done. Whatever you think best shall have my full and effectual support. But you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. I do not oppose, it is my duty not to oppose; but observe that I warn.' Supposing the king to be right, and to have what kings often have, the gift of effectual expression, he could not help moving his Minister. He might not always turn his course, but he would always trouble his mind."10
India's First President tried very hard to influence India's first Prime Minister, but did not succeed either to "turn his course", or "trouble his mind"! He had complained about this to Minoo Masani: he told Masani that Panditji did not allow him to exercise the powers which he thought he had under the Constitution. Years later Masani shrewdly observed that Rajendra Babu did not have the force of Nehru's personality, gave in too readily, and yet went on shaking his head and grumbling (as he gave in) saying: "this is not the way we framed the Constitution". Masani also said: "when people say what is wrong with this Constitution, I say nothing is wrong, what is wrong is us, we have destroyed the Constitution because people in Delhi love power too much to tolerate either a strong President or a strong State"! Minoo Masani was a Member of India's Constituent Assembly of which Dr. Rajendra Prasad was President, but his views about a "strong President" do not find support in the Constitution they together helped to frame. And yet, the Constitution did not and does not envisage a mere cipher or figurehead as President. And this is because of the silences in our Constitutions about the powers and functions of the President.
The President, as you know, is a constitutional functionary, having no political power. The President is bound by the advice of his Council of Ministers regarding Bills passed by both the Houses of Parliament and regarding promulgation of ordinances when Parliament in recess.
In order to emphasise that the President as a constitutional head could not override his Council of Ministers a proviso was added to Article 74(1) in our Constitution by a constitutional amendment (the Forty-fourth Amendment in 1978) which said that despite the fact that the President was mandated to act in accordance with the advice of his Council of Ministers, he could require his Council of Ministers to reconsider such advice either generally or otherwise; but that when such advice had been reconsidered and again tendered to the President he had to act in accordance with that advice.
At the time when the Tenth Lok Sabha had, all but in name, been dissolved, the Narsimha Rao Government placed two ordinances before the then President Shankar Dayal Sharma for promulgation, namely, one for shortening the period of poll campaigns from three weeks to two weeks and the other to extend reservations in public employment (or quota) to Dalit Christians. President Sharma relying on the proviso to Article 74(1) of the Constitution sent back the draft ordinances to the Government with a note dated 19-3-1996 which read:
"I would like to inform you that independent of the relative intrinsic merits of the ordinances proposed, promulgating these ordinances would appear to be inappropriate and contrary to the canons of constitutional propriety in view of circumstances existing at this particular juncture."
And since nothing a Prime Minister or President says or does in our country remains a secret, the contents of the communication of President Sharma to the Prime Minister soon became known. And the wisdom and sagacity of a President (even though a constitutional head of State) often trumps the political compulsions of an elected Government. That is how a constitutional democracy functions, and must function. The Government of the day dropped these ordinances and did not press for their promulgation: fearful as always, of those opening words in the ConstitutionWE THE PEOPLE.
A second instance that I recall occurred during the Presidentship of President K.R. Narayanan when Mr Gujral was the Prime Minister. The Council of Ministers headed by Mr Gujral sent to the President for promulgation a proclamation under Article 356 of the Constitution for the introduction of President's rule in Bihar. President Narayanan, acting under the proviso to Article 74(1) returned the proclamation for reconsideration, giving as he always did, elaborate reasons for his view. Again, this became widely known and the Union Government under Mr Gujral wisely refrained from reaffirming it and sending it back to the President, if he had, the public ("WE THE PEOPLE") would have been against him; in politics, discretion is often the better part of valour!
I believe that the President provides the window (perhaps the only window or opening) in that wall of separation that divides those in governance from the rest of the populace. Even after the constitutional amendment obliging him to act in accordance with the reconsidered advice given by his Council of Ministers, there is no prescription as to the time when he should so act. Time runs in the President's favour; and the astute President Giani Zail Singh used this to great advantage. When the Post Office Bill, 1987 was submitted to him for his assent, there was much criticism of its provisions, particularly the one which permitted an interception of all communications through the mail by the Government of the day: although the Bill was passed by both Houses of Parliament, Gianiji paused: and harkened to public opinion. He could sense the public outrage, and responded to it by not giving his assent. Before demitting office he wrote on the files that he hoped that his successor would not clear the Bill.11 As a consequence, the public outcry against the Bill gathered greater momentum, and the Bill lay unsigned even on President Venkataraman's desk; the latter having expressed his own displeasure at the Bill, returned it to the Prime Minister of the day (Mr V.P. Singh) in January 1990; the Bill was then tabled again in the Rajya Sabha: where it still remains, officially and only in name a pending Billin actuality, a parliamentary relic!12
All of which illustrates how a head of State can successfully "choke-off" unpopular legislation by just doing nothingby a calculated process of deliberate inaction, an unpopular and regressive measure can be successfully prevented from becoming enacted law. And this by exploiting one of the deliberate silences in the Constitution as to when a Bill passed by both the Houses of Parliament should be assented by the President. No one suggested that Gianiji had defied Parliament, no one moved for his impeachment: the obvious reason of course was that the President had the firm backing of public opinion.
The British Constitution is not written. But it recognises that the British Monarch on rare but important occasions is entitled to intervene in public affairs in a way that may be decisive. As the constitutional historian of England, Walter Bagehot, used to say "the greatest wisdom of a constitutional King would show itself in well-considered inaction"13 Gianiji may have been untutored about what went on in Westminster, but he had astute political horse sense: he could sense that the people were behind him when he delayed (and then withheld) assent to the Post Office Bill. And in politics nothing succeeds like success!
Earlier this year on 25-2-2005, I was witness to a bit of constitutional Statesmanship by our own President A.P.J. Abdul Kalam who delivered the customary address to both the Houses of Parliament to herald in the new session. As you know the Constitution provides for a Presidential address at the beginning of each session. It does not say who is to prepare itbut this is decided by convention. Since the President acts only on the advice of his Council of Ministers, the address is prepared by the Government of the day. But on the morning of 25-2-2005 President Kalam made a departurehe had with him the full text of the written speech prepared by the Government. But he chose to begin with a poem in Tamil, a poem composed not by the Government of the day but by himself the previous night: It was called"Where are We?"
Where are we?
Where are we now, dear friends,
In the Maha Sabha that shapes as history,
The call of heartbeats of Indian people,
People ask us, people ask us;
Oh! Parliamentarians, the sculptors of Mother India,
Lead us unto light, enrich our lives.
Your righteous toil is our guiding light,
If you work hard, we all can prosper.
Like King, so the people,
Nurture great thoughts, rise up in actions, May righteous methods be your guide;
May you all prosper ever with Almighty's grace.
It was a criticism of parliamentarians and their erstwhile manner of functioning, firmly, but politely expressed in verse. It was meant as a gentle exhortation from the people's President to the country's representatives not to walk out of legislative chambers, but to work hard and do their job: and since the President could not alter the text of his address to both the Houses of Parliament, he devised the expedient of saying (what he had to say) in verse and it was well received.
Once again an instance of an enlightened head of State taking advantage of one of the great silences in the Constitution, to slightly amend a constitutional convention and exhort the people's representatives to perform their task as parliamentarians with honesty of purpose and with dedication. No one could fault him on expressing the sentiments of the vast majority of India's thinking millions.
The President of India, as its first citizen, has the constitutional right, and correspondingly, the duty to interpose in public affairs of great moment, giving of his wisdom privately, never publicly; quietly, never with fanfare. An elected President notionally represents the collective will of the people, he can use it (and must use it) to temper the occasional excesses of its elected representatives.
I believe that on those very rare occasions when Parliament (or the Government) chooses to do something which the President of India believes to be unconstitutional, or even morally wrong or improper, it is his function, right and duty to intervene and to make known his views: an illustrative instance in point, would be an excessive prolongation (by a proposed constitutional amendment) of the life of an existing Parliament: which would keep in office a Government whose normal term has run out, and which is anxious to avoid elections.
But, then how must a President as a constitutional head of State, express his disapproval? It was a former Chief Justice of Pakistan who provided the answer many years ago. He was asked by his country's President (during that country's initial experiment with democracy) whether he could constitutionally refuse to give his assent to a Bill passed by the National Assembly (Pakistan's first Constitution after independence was like ours, fashioned on the Westminster model). Chief Justice Munir's answer went something like this:
"If you think it is a matter of the gravest importance, and you cannot in all conscience accept the measure presented to you, you can, and you must (if you are true to your oath) refuse assentbut having refused assent you must then resign; the system must go on; people will know why you resigned, and will sort things out with their Governments."
Pearly words of wisdom: they show how important, and how potentially effective, is the great office of the President in a parliamentary democracy: but they also show that the words of the Constitution though important are never decisive: because the silences in our constitutional law speak louder than words.
- Liyanage v. R., (1966) 1 All ER 650 at 658E-F
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- AIR 1951 SC 458
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- AIR 1965 SC 845
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- AIR 1967 SC 1643
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- Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
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- Articles 19(1)(f) and 31 of the Constitution (the property clauses) were deleted from the fundamental rights chapter by the Constitution Forty-fourth Amendment Act, 1978. Article 300-A inserted by the Forty-fourth Amendment now provides that no person shall be deprived of his property save by authority of law.
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- 1975 Supp SCC 1
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- Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625
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- 6th Edn., Vol. O, pp. 210-11
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- Walter Bagehot: The English Constitution (republished in 1991 by the Fontana Press, p. 113).
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- Giani Zail Singh: Memoirs of Giani Zail Singh: The Seventh President of India, Har-Anand Publications (P) Ltd., (1997) p. 279.
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- Granville Austin: Working a Democratic Constitution, Oxford University Press, (1999) pp. 513-14.
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- Rodney Brazier has suggested that the Monarch (a constitutional head of State) can legitimately, if extraordinarily, intervene in the legislative process e.g. if a Government Bill designed to achieve a permanent subversion of the democratic basis of the Constitution, it could be vetoed: Constitutional Practice (1994) 2nd Edn., pp. 189-92.
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