A Rebel in its Seventies: Condensing the Identity of the Indian Constitution in 2020

Determining, or rather attempting to determine, the identity of the Constitution of India in present day would be extremely erroneous without taking into account the interdisciplinary nature of the study involved.That means to say, that the study of the ‘Grundnorm’[1] of the Indian legal system shall remain incomplete if it is not studied vis-à-vis the other laws enacted, amendments and the Constitutional challenges thereto. All laws in India find a place in the study of the Constitution, given that it reserves the authority to examine[2] those and strike those down[3].Additionally, the elements of interpretation in this day and age are many—a “harmonious construction” between the historical meaning and a contemporaneous meaning forms the basis of modern identity of our Constitution, among other aids of interpretation.

The journey of determining the Constitutional status of a nation (a democratic nation, no less) can’t be divorced from the popular and existing polity. To quote Dr. Friedmann, “all legal theory must contain elements of philosophy and gain its colour and specific content from political theory”[4]—suggesting simply that jurisprudence is bound by philosophy and political theory at the two ends. Legal theory and Constitutional interpretation may also be studied in a pure form, for the sheer purpose of practicalities, but the true identity of a legal text such as the Indian Constitution necessitates the import of all contributing factors. In such a backdrop, the study becomes increasingly insightful.

ACQUIRING A NEW IDENTITY

The text of the Constitution has remained fairly constant, and yet the identity it reflected has variedly continuously. The most prominent example of Constitutional “deficiency” was witnessed at the time of National Emergency in 1975. The majority ruling of the Habeas Corpus case[5]finds an unsurprising mention in this context, where all the judges, but one[6] chose to depart from the inherent guarantee of every civilized society/legal system: the guarantee of right to life and liberty.

“Rule of law…regarded as a mark of free society…and is further identified with liberty of the individual.”[7]

Since overruled (majority decision), the “conservative” understanding of human rights seems to have resurfaced,[8]in the enactment of certain laws[9] as well—challenges to which remain pending before Courts. Time and again, the Supreme Court has come under a scanner—by jurists and media alike, by virtue of it being the final arbiter of Constitutional interpretation. In the words of Justice D.Y. Chandrachud, “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty.”[10]Recent occurrences have shown that neither has popular constitutionalism become extinct, nor have we renounced our constitutional history—although it did seem so for a brief time in the past. The enactment of laws in ignorance of Constitutional ideals shall not and has not remained unchecked—the source of those ideals being the Preamble, “a key to open the mind of the makers”[11]. A Constitutional (not necessarily legal) awakening (of “we, the people”[12]) has since happened.

“…there is a difference today – a uniqueness of the constitutional thinking of our era. For the first time, the ideas of the basic text condensed in the preamble is being held up as a mirror against which laws and other provisions will be judged. Thus, jurisprudence will be judged in the mirror of justice, or to put it differently, justice against jurisprudence…it will suffice to point out that the popular constitutional imagination has opened up cracks in the constitutional thinking of the country.

Probably for the first time in the history of the republic, it is not jurists and lawyers who are interpreting the constitution…Popular struggle on the streets, campuses, squares, towns and cities, tea shops, clubs, and assemblies, has found novel ways to bring back the question of justice…”[13]

The ‘test’ of the legality of procedure, as envisaged under Article 21 went through the phase of A.K. Gopalan’s judgment[14], when procedure was required to be just it—procedure, to Maneka Gandhi’s ruling[15] where the requirement was elevated to be “just, fair and reasonable”. Manifestly arbitrary procedure was also discarded by the Constitution through interpretation.One important question that confronts us here is if the identity of the Constitution varies with Amendments. The basic identity of the Constitution shall remain the same as was secured by the 13-judge bench in our own Malbury v. Madison[16], that was the Kesavananda’s case[17], declaring that the basic structure of the Constitution could not be amended. This Supreme Court started on this journey much earlier, too, with Shankari Prasad v. Union of India[18],where they found no limitations or exceptions to the power of Amendment. Thereafter,after going over a similar interpretation in Sajjan Singh v. State of Rajasthan[19]and varying interpretation in I.C. Golakhnathv. State of Punjab[20], the Court finally laid the law that regulates law-makers today in the 13-judge Bench decision. This “basic structure doctrine” was further strengthened in many cases[21] to follow.

“If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning… the elements of the Constitutional structure.”[22]

These elements shall remain a perpetual constant in the sea of transformative interpretation. The study of Constitutional Amendments is crucial in a discussion on Constitutional identity and change. It must also be clarified that the ‘transformative’ Constitution argued for and the phenomenon of Amendment are not used in the same sense. The essence of this difference is in not being prone to metaphysical alterations. After more than a hundred Amendments, the Constitution may be likened with the “Ship of Theseus”[23].It would, however, be more accurate to say that the basic framework, or more succinctly, the basic structure resembled the unwritten Constitution of the United Kingdom. This structure, though not unwritten, is not so written in uninterrupted text that can be underlined or read aloud—it is about the “bottom-line, spirit of the thing (document)”.

Constitutional Amendments have also been used to erode the finality of Court decisions, the best example being amendments in Articles relating to affirmative action. While the M.R. Balaji’s case, the Court considered social backwardness to be “on the ultimate analysis, the result of poverty”[24], considering economic conditions as a contributing factor. This was overruled by the 9-judge Bench in Indra Sawhney v. Union of India[25],the Court rejecting economic backwardness as a criterion for reservations, saying that “without evidence of historical backwardness, the Constitution doesn’t allow reservation”.Law settled after these judgements is of also of 50% cap on reservation. The latest amendment[26] to the Constitution, among many others before,ostensibly seems to transgress the law laid down as aforementioned.This is, however, simply an illustration, and the question of legality of this Amendment is pending before a 5-judge Bench.[27]

CONCLUDING ANALYSIS: REBELLING OR SIMPLYE VOLVING DYNAMICALLY?

Studying the aforementioned judgments of the Supreme Court, wherein laws were interpreted in the authority of this supposedly ‘transformed’ Constitution—and the fact that people’s protests against laws are gaining momentum in India, many possibilities of identity determination present themselves: a ‘new’ Constitution? A transformed one? Insurgent Constitution? The answer lies in the process of looking for one, because this is the arena of multitudes.

Law-making in 2020’s India requires the consideration ofnot only short-termbenefits, but also long-term constitutional alterations. Transformative Constitutionalism may be termed as an ‘anagnorisis’—a revelation of the text that exists, but one that doesn’t result in ‘peripeteia’. The values are essentially the same: emancipation of all sections of society (especially the oppressed and marginalized, through affirmative action),continuous development of the ideals of “liberty, equality, fraternity” and becoming the social democracy Dr. B.R. Ambedkar spoke of (and not simply a political one).Our Constitution identifies today and has always identified as a tool for social reform/change/transformation. A recently appointed judge of the US Supreme Court came under harsh criticism for saying that she believes in the Constitution “as it was written and not what I want it to be”,[28] adding that, “meaning doesn’t change over time.”[29]. The focal point of the criticism lies in the fact that it may be interpreted as a rejection of all transformative tendencies, not just legal but also social. The latter, as a universal truth, is inevitable. In fact, an originalist stance becomes even more absurd in a country like the US because it is often said, “women had no status in the Constitution of 1787”.[30]

Our Constitution today, as evidenced above,ensures justice, one which is not limited by jurisprudence.There are evidences in Indian Constitutional history, that are reflective of what was, but never should have been; yet we have now come a long way. The rulings on talaq-e-biddat[31]and Sabarimala[32]showcased that identity of the Constitution intends to secure justice for women;the NALSA judgment[33] and decriminalization of Section 377[34], I.P.C. show that it strives to secure justice for the LGBTQIA+ community (with a long way to go); the ratio descendi of the rulings on privacy[35] and education[36] guarantee the dignity that the Preamble promised. To reiterate, this justice is not limited by jurisprudence and that the same time, it is not independent of jurisprudence—as that would be lawlessness. It, however, calls for law-makers and interpreters to “open their minds” to progressive, or more aptly, transformative jurisprudence.

(Anna Anu Priya is a law student from Law College Dehradun)

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[1]V.D. MAHAJAN, JURISPRUDENCE AND LEGAL THEORY 545 (Eastern Book Company 1987)

[2]INDIA CONST. art. 13

[3]INDIA CONST., art. 32 § 226

[4]W. FRIEDMANN, LEGAL THEORY 45 (London: Stevens and Sons, Ltd. 1949)

[5]ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521

[6]Id., Khanna, J. dissenting

[7]Id.

[8]<Scroll Staff>, Western standards of human rights do not apply to India, says Home Minister Amit ShahTHE SCROLL (Oct. 13, 2020, 12:47 PM), https://scroll.in/latest/940344/western-standards-of-human-rights-do-not-apply-to-india-says-home-minister-amit-shah (last visited 19.12.2020)

[9]See The Unlawful Activities Prevention Act, 2019§ 5,6 Acts of Parliament, 2019 (India)

[10] K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161

[11]In Re:BerubariUnion and anr.,AIR 1960 SC 845

[12]INDIA CONST.,the Preamble

[13]Ranabir Samaddar, An Insurgent Constitutionalism is Driving Popular Politics in India Today, THE WIRE (Jan. 26,2020, 0000 hours), https://thewire.in/politics/an-insurgent-constitutionalism-is-driving-popular-politics-in-india-today (last visited 12.12.2020)

[14]AK Gopalan vs The State of Madras, AIR 1950 SC 27

[15]Maneka Gandhi v. Union of India, AIR 1978 SC 597

[16]5 U.S. (1 Cranch) 137 (1803)

[17]Kesavananda Bharati ... v. State of Kerala, AIR 1973 SC 1461

[18]AIR 1951 SC 458

[19]1965 SCR (1) 933

[20]AIR 1967 SC 1643

[21] Minerva Mills v. Union of India, AIR 1980 SC 1789; I.R. Coelho v. State of T.N., AIR 2007 SC 861

[22]Kesavananda, supra note 17

[23]SeeIndian Medical Association v. Union of India, AIR 2011

[24]M.R. Balaji v. State of Mysore, AIR 1963 SC 649

[25]Indra Sawhney v. Union of India, AIR 1993 SC 47

[26]The Constitution (One Hundred and Third Amendment) Act, 2019 § 2,3, Acts of Parliament, 2019 (India)

[27]Debayatn Roy, EWS Reservation: Five Judge Constitution Bench of Supreme Court to decide challenge to 103rd Constitutional AmendmentBAR AND BENCH(August 5, 2020, 01:07 PM), available at https://www.barandbench.com/news/litigation/ews-reservation-challenge-referred-to-constitution-bench-supreme-court (last seen 19.12.2020)

[28]Tom McCarthy,Amy Coney Barrett is a Constitutional ‘Originalist’– But What Does It Mean?, THE GUARDIAN (Oct. 27,2020, 00.15 GMT) available at https://www.theguardian.com/us-news/2020/oct/26/amy-coney-barrett-originalist-but-what-does-it-mean (last seen 19.12.2020)

[29]Id.

[30]Mary B. Norton, The Constitutional Status of Women in 1787, 6 LAW & INEQ. 7,8 (1988), alsoavailable at: http://scholarship.law.umn.edu/lawineq/vol6/iss1/3 (last visited 12/12/2020)

[31]ShayaraBanov. Union of India, (2017) 9 SCC 1

[32]Indian Young Lawyers Association &Ors. v. The State of Kerala &Ors., WRIT PETITION (CIVIL) NO. 373 OF 2006 (decided on 28 September 2018, Supreme Court of India)

[33]National Legal Services Authority (NALSA) v. Union ofIndia, AIR 2014 SC 1863

[34]Navtej Singh Joharv. Union of India,WRIT PETITION (CRIMINAL) NO. 76 OF 2016 (decided on September 6, 2018, Supreme Court of India)

[35]Justice K.S. Puttaswamyv. Union of India, (2017) 10 SCC 1

[36]J P Unnikrishnan v. State of Andhra Pradesh,1993 SCC (1) 645