Constitution Turns 'Seventy-One'

BY: Areeb Uddin Ahmed & Kumail Haider

ON 26th January, 1950 the Indian Constitution was enforced and the British Crown was discarded, it was one of the most significant moment in Indian History. If we refer to the Indian Constitution then one can surely refer it as the 'grundnorm' of India, this term was initially coined by Kelson who opined that a 'basic norm theory' can be used to trace the legitimacy or constitutional validity of a particular law.

Love not hate

In 2018, the Hon'ble Supreme Court directed various guidelines to curb Mob-lynching, and it was also suggested that a National Law on lynching should be proposed by the concerned authorities. It was observed by Justice Misra (CJ, former) that "Lynching and mob violence are creeping threats that may gradually take the shape of a Typhon-like monster as evidenced in the wake of the rising wave of incidents of recurring patterns by frenzied mobs across the country instigated by intolerance and misinformed by circulation of fake news and false stories." But to the contrary, no such law was brought forward by the authorities and ironically today the debate has shifted to 'Love' from 'Hate. Recently, many states have brought forward 'pre-mature' legislation/ordinance in the name of 'Love-Jihad'. The Uttar Pradesh government in is set to bring an ordinance to check forced religious conversion even as several other BJP-governed states work on laws to check 'love jihad'. The state law commission had first submitted the draft raft of a proposed bill against forced conversion in 2019. It had recommended a jail term between one and five years for the accused and imprisonment of two to seven years in case of forced conversion of SC/STs. The commission had even recommended that both marriage and conversion be declared null and void if either of the parties is forced into changing religion for the purpose of matrimony.

The Part-III of the Constitution gives certain rights to the citizens, and one of them is to choose a partner. It is noteworthy to refer the recent observations made by the Allahabad High Court, where the court while 'rejecting' State(s) argument that "conversion per se for contracting a marriage is prohibited, and said marriage has no sanctity in law, thus this Court should not exercise its extra-ordinary jurisdiction", observed that "We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together." Now, it is with the authorities to execute such observations and focus on the real issues rather than disturbing the constitutional fabric.

Article 32: The heart of the Constitution

Article 32, which talks about the enforcement of the concerned fundamental rights which has been enriched in Part 3 itself. It was referred as the 'Heart and Soul' of the Constitution, but recently the trend has been changing and many important decisions are still pending or are being waived off. The rule of Bail, not jail was framed because the it is an established principle that one is 'innocent until proven guilty' and bail should be preferably given.

A journalist, who should not be named, approached the Hon'ble Court and relief was awarded the very next day, but a class of citizens which have been approaching the same court have been denied the same. When a journalist who was detained in Uttar Pradesh while he was going to Hathras to cover (sic) the rape incident, approached the court, the Supreme Court had observed that "We are trying to discourage Article 32 petitions. We will issue notice, but might send you the High Court".

The concern which has to be pointed out here was discussed by Justice Lokur (Retired) in a recent discussion on "defending liberties" organised by the Delhi High Court Women Lawyers Forum and WCLA:

"The Supreme Court, over the years, right from the 1950s onwards, has been very, very liberal in granting relief. There are very few cases where a person has not been given relief under the writ of habeas corpus. The Courts have gone to the extent of saying that even if a petition for habeas corpus has been dismissed, another writ petition can be filed - may be with the same grounds, maybe with different grounds… And that can be entertained. So it’s not as if once the writ petition is dismissed, that is the end of the road. It has to be, and has always been given by the Supreme Court, a very liberal interpretation. And that is how I think it should be. The Supreme Court has also said, you don’t have to file a petition, you can send a post card… It doesn’t have to be by the detenue, it can be by the next friend or relatives. There are various ways of invoking the jurisdiction of the Court in a writ of Habeas Corpus.”

It is noteworthy to refer what the court observed in Kavalappara Kottarathil v. The State Of Madras & Ors, the Supreme Court rightly observed that - "We do not countenance the proposition that, on an application under Art. 32, this Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground. If we were to accede to the aforesaid contention of learned counsel, we would be failing in our duty as the custodian and protector of the fundamental rights. We are not unmindful of the fact that the view that this Court is bound to entertain a petition under Art. 32 and to decide the same on merits may encourage litigants to file many petitions under Art. 32 instead of proceeding by way of a suit.

Steam Hammer and the 'Nut'

In R v. Goldstien, [1983] 1 WLR 151, 155, the court had rightly observed that - “You must not use a steam hammer to crack a nut, if a nutcracker would do.” The same reference was given in the Anuradha Bhasin judgement which re-shaped the imposition of Section 144 within the territory. Another Constitutional crisis which the State of Jammu and Kashmir has been facing is 'non-access to Internet', but now situation is healing with only 2G available at some places. Apart from Kashmir, there have been many states where imposition of Section 144 took place, especially when the fellow citizens tried to assert their right to protest. The same situation is in Punjab, where the farmers of our country are protesting against the Farmer(s) Bill which tries to dilute the Mandi system which was being self-regulated by the farmers. There must be a balance between these restrictions and the objective sought, hence on paper the test of proportionality needs to pass these measures -

(a) A measure restricting a right must have a legitimate goal (legitimate goal stage)

(b) It must be a suitable means of furthering this goal (suitability or rational connection stage).

(c) There must not be any less restrictive but equally effective alternative (necessity stage)

(d) The measure must not have a disproportionate impact on the right holder (balancing stage).

But if we refer to the incidents which have been happening around, then how reasonable are these restrictions? The term 'reasonable' is not so reasonable now and the restrictions laid down are not much very proportionate accordingly, the Supreme Court in Chintaman Rao v. State of Madhya Pradesh, had rightly observed that -- the phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.

Federalism not in spirit, only on paper

In Keshavananda Bharati, the majority by 7:6 held the parliament has every power to amend the Constitution but it cannot destroy the basic structure. J. Sikri along with along judges separately defined their version of - basic structure which also included ‘Federal structure’ of the Indian Constitution. In Para 292 of the judgement, J. Sikri has observed that the basic structure may be said to consist of the following features -

• Supremacy of the Constitution

• Secular Character of the Constitution

• Federal Character of the Constitution

• Republican and Democratic form of government E)Separation of powers

Now, let us come it to the practical approach of 2020, where most of the legislation have been brought in to disturb the 'federal' structure of the Constitution itself. At first,

The Inter-State River Water Disputes (Amendment) Bill, 2019 was introduced to amend the existing Act. The main objective of the Act was relatively a diversion of power from States to the Central authority which eliminated the states from performing certain duties. River Basin Management Bill, 2019 and the Dam Safety Bill, 2019 were also introduced by the Parliament. All the above mentioned bills were passed to disrupt the power distribution along the states and the authority was being transferred into hands of the Central government. Secondly, the Forest Amendment was proposed and the National Policy was tabled, that too without much of 'public consultation'.

Next in line, is the Farmer(s) Bill, 2020 which is one of the reasons why our farmers are protesting and asserting their basic right to 'dissent'. The Seventh Schedule of the Indian Constitution talks about ‘Agriculture’ and the concerned list which covers it. The Union list has hold of Entry 82, Entry 86 and Entry 88 which deals with the taxation, duties and income. Also in the Concurrent list there are some entries which deal with Agriculture (Entry-6, Entry 7 and Entry-41) In the State list:

• Entry 14 - Which talks about Agricultural education, research, pests and plant diseases.

• Entry 18 - Which governs the transfer of Agricultural lands, rights vested in or over the land.

• Entry 28 and 30 - Which relates with the markets specified and the fairs, and the later one deals with indebtedness.

• Entry 45 and 46 - Which deals with land records, concerned revenue and taxation on Agricultural income.

• Entry 47 and 48 - Which talks about succession of Agricultural land and estate duty.

So, the ordinance by the central government runs against federal spirit of the constitution, which is a part of the basic structure. No talk with the stakeholders of farming made before the proposal of the bill and the enactment of the Act. Challenging this legislation in court for public good, for inappropriate parliamentary proceedings. Without discussions, bills got passed.

We the people at 71

There have been many changes within the structure of the Constitution, but no one can alter the spirit which the document possesses. Our Constitution turns 71 this year, and it has been used as a safeguard armor by the unprivileged ones. No doubt, there have been many attempts made to limit the fundamental scope of the constitution, but the Supreme Court has been there to monitor the same, the Institution has been one of the strongest pillars when the Parliament was trying to amend Part - 3 of the Constitution and the bench rightly observed in the Kesavananda Bharti case that everything can be changed but not the basic structure. To conclude, one can refer to an unreported case, which never got a chance to be recorded -- a review petition was filed in the Kesavananda Bharti case and the submissions made by Nani Palkhivala echoed the court room, as rightly reported by - The Basic Structure Blog

"Justice H.R. Khanna (a member of the Bench in Kesavananda-II) praised Nani’s advocacy in Kesavananda-II case and remarked ‘It was not Nani who spoke. It was divinity speaking through him.’ He further said that his opinion was shared by all his brother Judges. Justice Khanna also termed the decision as significant as Kesavananda-I, as it marked the last determined assault on the Basic Structure Doctrine and would mark the beginning of its influence on the constitutional law in India. Sadly, the outcome in Kesavananda-II does not find a place in any reported decision because before an order could be dictated, Justice Ray merely declared ‘This bench is dissolved’ and walked out."

(Disclaimer: All the facts used in this blog post are reported or in public domain. The Author(s) do not wish disrespect any member of the legal fraternity/institution.)