Every written constitution is supplemented by important
unwritten principles: the constitutional law of all nations (whether or
not they have a codified Constitution) consists of some combination of
the written and unwritten. Judges interpret the abstract language of
written constitutions and speak where the text remains silent. As a
codified constitution grows older, it forms less and less of the
constitutional law of a nation, having been supplemented by judicial
decisions and political practice over time. But what happens when
constitutional law diverges from the written constitution to such an
extent that it is not just a ‘radically incomplete statement’ of the
higher law but, going a step further, is positively misleading?
Deceptions in provisions
The
Indian Constitution is transforming into a deceptive one — several
constitutional provisions misrepresent what the existing constitutional
position is. Most conspicuous among these are Articles 368(4) and (5),
which categorically provide that there is ‘no limitation whatever’ on
the power of Parliament to amend the Constitution. In the most famous
case in the Supreme Court’s history (Kesavananda Bharati v State of Kerala),
the Court assumed the power to strike down constitutional amendments
that altered, destroyed, or abrogated the ‘basic structure’ of the
Constitution. Articles 368(4) and (5) thus have no effect, and
Parliament’s power to amend the Constitution is unquestionably
constrained. Similarly, Article 31B — a clause intended to protect
legislation inserted into the Ninth Schedule of the Constitution
‘notwithstanding’ the judgment of any court — does not, by virtue of a
succession of Supreme Court judgments, fully insulate legislation from
judicial scrutiny. Instead, courts can test legislation inserted into
the Ninth Schedule on the basis that it abrogates fundamental rights
that form part of the basic structure of the Constitution. The deception
espoused by provisions of the Indian Constitution is fairly unique. In
most other nations with written constitutions, the divergence between
the text and practice arises on account of the difficult of formally
amending a constitution, coupled with the need to modernise a
constitution’s functioning. As Tom Ginsburg and other scholars observe
in the context of the U.S. Constitution, judges “have filled in the
details of the vague 18th century document to make it suitable for
modern life”. In contrast, the Indian Constitution has proven relatively
easy to change, and has been amended more than once a year on average.
The deception in India has arisen on account of the fact that even
though the Indian Supreme Court has the power to strike down or set
aside constitutional amendments, it has no power to repeal them, which
means that many ineffective provisions of the Constitution remain on the
books. Parliament is the only institution that can change the
Constitution to more accurately reflect the true constitutional
position, and, so to speak, force the hand of the publishers.
This
discussion has an interesting bearing on one of the most important
cases currently being heard by the Supreme Court — the challenge to the
constitutional amendment that sought to change the way in which judges
of the Supreme Court and High Courts are appointed. Under the system, as
it existed before the amendment, the power to appoint judges
effectively belonged to a collegium of the senior-most judges of the
Supreme Court.
Parliament attempted to transform the
appointments process by amending the Constitution to establish a
six-member National Judicial Appointments Commission. Naturally, as it
stands, the constitutional text contains provisions explaining the
modalities of how the Commission is to perform its task. In the event
that this constitutional amendment is struck down, we will be left with a
situation in which the Constitution refers to an appointments process
by a body that neither had an inaugural meeting, nor appointed a single
judge.
Deception may not be seen as much of a problem
for lawyers. However, it represents a major access barrier for members
of civil society who, quite understandably, refer to the constitutional
text as the first (and often, only) port of call in understanding what
the constitutional position is. Aside from its symbolic significance,
one of the benefits of a codified constitution is that it generates
awareness about the processes of government.
The
National Democratic Alliance government has promised to repeal hundreds
of obsolete statutes, including many that have been struck down, as part
of a legislative clean-up exercise. It is more perilous to envisage the
same being done for the Constitution — the concern always being that
any government in power will silently remove an inconvenient provision
of the Constitution too, appropriately sandwiched between groups of
obsolete provisions. Perhaps all that can be done, then, is to encourage
people to continue reading the text of the Constitution as a starting
point — but warn them that what you see is not necessarily what you get.
(Chintan Chandrachud is a PhD Candidate at the University of Cambridge.)
Source: http://www.thehindu.com/opinion/op-ed/indias-deceptive-constitution/article7295299.ece
