By Ashish Khetan
No constitutional democracy can sustain without a constitutional dialogue between the non-judicial forces.
American legal scholar and constitutional expert Alexander Bickel, in his work The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962) referred to a “continuing colloquy” between the Supreme Court, political institutions, and society. Bickel, American constitutional scholar and political scientist C. Herman Pritchett (Congress Versus the Supreme Court, 1957–1960, 1961), and American political scientist and writer Walter F. Murphy (Congress and the Court: A Case Study in the American Political Process, 1962) were among the pioneering voices describing constitutional governance as a ‘dialogue movement’.
In 1988, Louis Fisher, another distinguished American constitutional law scholar, contended in his book Constitutional Dialogues: Interpretation as Political Process that constitutional law was not the sole province of the judiciary, but rather the result of ongoing discussions between the three principal branches of the national government, the states, and the people.
In India, however, glancing at the Supreme Court’s docket would reveal that the process of constitutional dialogues and collaboration has collapsed spectacularly.
Rarely are Opposition-ruled state governments and the Centre willing to manage or resolve legal or political disagreements or conflicts in power relationships through dialogue. Instead, the current practice is to keep pushing the limits of their constitutional authority until it reaches a point where the Supreme Court must intervene and chastise the warring constitutional authorities as if they were disobedient pupils.
The petition the Punjab government filed against the state governor’s inaction on the state cabinet’s decision to summon the Punjab Vidhan Sabha’s budget session best describes this non-engagement.
There was no occasion for the Punjab governor to seek legal counsel over whether to call a budget session. Even a young law graduate would have told him that he was obligated to follow the cabinet’s advice.
Numerous constitutional courts have established limits on the governors’ discretion. Under Article 167(b) of the Constitution, the Punjab chief minister was also obligated to provide the governor with the requested information.
But both sides ignored the undisputed constitutional positions, and instead took legally untenable stances. This is despite governments having top lawyers on their payrolls, who could easily interpret the constitutional provisions for their political masters.
The matter wasn’t settled until the Chief Justice of India had to admonish the two sides to act with “maturity and decorum“.
Another recent instance where the Supreme Court’s intervention was unnecessary was the Delhi Mayor elections. The lieutenant governor’s decision to permit nominated Municipal Corporation of Delhi (MCD) members to vote in the polls for mayor was patently illegal.
There was neither a discussion nor an attempt to resolve the disagreement between the chief minister and the lieutenant governor of the National Capital Territory of Delhi.
Constitutional collaboration is key to healthy democracy. Preserving the integrity of established legal norms, the apex of which is the Constitution, is a shared responsibility of the three branches of the State and the public. In fact, chief ministers, governors, ministers, members of legislature, all take an oath to uphold the Constitution. But once in office, many honour their oath more in the breach than the observance.
A constitutional court resolves complex or contested questions of constitutional interpretation. Judicial orders invalidating executive or legislative acts on grounds of constitutional violation is one of the most powerful acts of higher judiciary. However, it is not the courts’ job to instruct the executive branch on how to make constitutional decisions daily.
A few weeks ago, a five-judge Constitution Bench of the Supreme Court reserved its order on the unceasing power tussle between the Delhi chief minister and the lieutenant governor.
This is the third round of litigation between the Delhi government and the Centre over the division of executive powers. However, despite the hundreds of hours contributed by numerous Benches, the differences between the lieutenant governor and the chief minister persist.
On July 4, 2018, a five-judge Constitutional Bench of the Supreme Court issued a 535-page unanimous judgment. The court ruled that the lieutenant governor is an administrative head in a limited sense and that he is bound by the “aid and advice” of the council of ministers of the Delhi government. The judges laid stress on “constitutional morality” and “constitutional trust” for the sustenance of the “glory of constitutional democracy“.
The verdict was an impassioned plea to the political executive to act as per the “conscience of the Constitution“. Yet within no time, tensions between the lieutenant governor and the Delhi chief minister reappeared regarding who controlled the administrative services.
On February 14, 2019, a two-judge Bench of the Supreme Court delivered a split decision on the issue. Following that, the case was referred to a three-judge Bench and then, upon the Union government’s request, to a larger five-judge Constitution Bench.
Will the Constitution Bench’s decision, once it is issued, usher in the smooth functioning of the Delhi administration? Broad principles are all that the constitutional court can establish. It is neither practical nor desirable for the Supreme Court to continuously monitor if the executive’s decisions are made per the court’s decreed constitutional values and principles.
Also, constitutional law is shaped not by the judiciary alone. Civil society, interest groups, and the public have an equal role to play. Public opinion has played a significant role in courts recognising rights such as those to privacy, procedural and substantive due process of law, a speedy trial, education, a healthy environment, and dignified life as constitutional rights.
But more recently, the executive is increasingly less inclined to collaborate with the people. On the contrary, this government views civil society with suspicion and contempt.
One of the defining features of the nationwide Citizenship (Amendment) Act–National Register of Citizens protests was the elected executive’s stubborn refusal to engage with civil society and minority groups on the constitutionality of the Act. That non-engagement ultimately led to widespread riots, and the loss of life and property in Delhi and many other places in the country in the winter of 2019–20.
Our Constitution envisions an engagement between political and social institutions based on mutual respect secured by the shared commitment to constitutional principles. The court, at best, serves as this dialogue’s final judge.
The Indian Constitution is the world’s largest written Constitution, containing 470 articles, twelve schedules and five appendixes. This codification exercise was central to the creation of common meanings and shared understandings.
The fulfilment of socioeconomic rights enumerated as directive principles and civil–political rights guaranteed as fundamental rights, necessarily involves a dialogue between inter-governmental institutions on one hand, and between state and citizens on the other. The semi-federal structure of the Constitution also entails a constructive dialogue between the Centre and the states. Similarly, the enumerated restrictions to fundamental rights undergirds a dialogue between the legislature or executive and the judiciary.
The Supreme Court is the last, not the first, arbiter of constitutional questions. It steps in at the end of the democratic process when other actors have failed to resolve a knotty constitutional matter despite their genuine efforts and joint deliberations. Even with a full quorum of 34 judges, the Supreme Court cannot play an eternal umpire in a battleground of warring governments, acting with mala fide and partisan zeal.
Pleas challenging the revocation of the special status of the former state of Jammu and Kashmir are still to be listed. Cases involving the validity of criminal defamation law and contested provisions of the Prevention of Money Laundering Act should have been heard by five or seven-judge Constitution Benches, not by two or three-judge Benches. Until the late 1970s, significant questions of constitutional interpretation were invariably heard by Benches comprising five or more judges.
However, it is frequently observed that important legal issues these days get sidelined as a result of issues involving political squabbles overtaking the court. Instead of engaging in dialogue with opposing viewpoints, the executive is content these days to use the law and the Constitution as weapons against anyone who disagrees.
An insidious erosion of the Constitution is in play. This dangerous slide needs to be arrested. (IPA Service)
Courtesy: The Leaflet