Tag: constitutionalism

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Guest Post: Constitution as the Supreme Law of the Land with Special focus on the Civil Liberties

[This is a post by Sana Afraz and Malobika Sen]

Introduction: What were the intentions of the Founding Fathers? 

Let us remember what the Constitution makers envisioned for this nation and the liberty of its people, before we are accused of mirroring our own virtues as the Constitution’s burden. Not only is ‘liberty’ lawfully sacrosanct, it emanates from the core on which the Constitution was built, the preamble. From the perception that ultimate sovereignty rests with the people of India, ergo, power is derived from the people. Dr. Ambedkar professed this public-supremacy in his concluding speech in the Constituent Assembly: “Political democracy cannot last unless it lies at the base of its social democracy. What does social democracy mean? It means a way of life which recognizes Liberty, equality, and fraternity…”

Democracy is dynamized with certain minimal and intrinsic rights, a requisite for a free and civilized existence: Liberty of thought, expression, belief, faith and worship; equality of status and opportunity; and to promote fraternity. It is the proverbial truth that without liberty, there cannot exist a democracy. 

Liberty as we know it

The knight in shining armor of this proverbial truth is Article 19, which guarantees to the citizens of India, six paramount rights. While Liberty is also covered under Articles 20, 21, and 22, Article 19 is distinctive, as it speaks of ‘basic liberty‘ as opposed to ‘personal liberty.’ 

The six rights under Article 19, briefly understood are: (1) Freedom of speech and expression: (Article 19(1)(a)), is indispensable and allows for open channels of free discourse; (2) Right to assemble (Article 19(1)(b))peaceably and without arms; (3) Right to form associations or unions: Article 19(1)(c)  The need for collective strength and such freedom is upheld under this right. (4) Liberty to move freely (Article 19(1)(d)) and (5) reside and settle in any part of India ( Article 19(1)(e)) These rights illustrate the notion that India is one indivisible unit, territorially (and metaphorically). (6) Liberty to practice any profession or carry on occupation: (Article 19(1)(g)) and an individual cannot be forced to accept a livelihood.

How is Liberty statutorily restricted?

While Liberty is inviolable, the freedoms guaranteed by Art. 19(1), are not absolute, as no right can be. As was observed in Gopalan vs. State of Madras (1950) “There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder.”

Thus, the rights under Article 19 may be regulated by laws made by Parliament or State Legislatures (Clauses (2) to (6) of Article 19), as ‘reasonable’ restrictions. So far as (i) the freedom of speech is concerned, the right can be enjoyed subject to the interests of’ ‘security of State, friendly relations with foreign states, public order, decency, morality, sovereignty and integrity, or concerning contempt of Court, defamation or incitement to offense.’ (ii)The right to assemble, may be restricted in the interest of public order, sovereignty and integrity of India; (iii) right to form associations or unions, impose the same limitations along with an additional ground of morality; (iv) right to move freely and (v) the right to reside and settle in any part, is also limited to reasonable restrictions in the interests of the general public or Scheduled Tribe; (vi) right to practice a profession or run a business may be restricted in the interest of the general public. The State may also make laws regarding necessary qualifications or to create a monopoly in its favor.

However the right is paramount and restrictions are auxiliary and the burden is on the authority to justify the restrictions. 

Reasonable restrictions

While the restrictions  are legally sound, how then, do we judge their ‘reasonability’? 

Since society was created and the chaos that followed, there is a pursuit to bind an individual under the realm of civilization. No one exists in society with the (arrogant) expectation of living in complete freedom, and minimum restrictions become imperative for harmony to prevail and anarchy to desist. Judicial precedents establish that there is no mathematical paradigm to determine these restrictions.  However, there exists a general understanding. While analyzing a restrictive legislation, reasonability and proportionality come into play. These help analyze the legislation in two ways, whether ‘directly’ as infringing fundamental rights or whether they are ‘proportional’ to constitutional limitations.  

Over time, the courts have taken care not to be misguided by the apparent ‘intention’ of legislation but surgically manoeuvre through elements of public interest, rights and remedy. In effect, the burden is on the State to prove there is no proximate nexus to the infringement of Fundamental Rights. Another yardstick is to see whether the legislation passes the test of public interest, such that whether or not it upholds the Directive Principles of State Policies. The courts are to prudently evaluate the effect of the legislation, however ‘noble’ its intention. 

Constitution as the Supreme law

The Constitution is the supreme law of the land and permeates each institution in the country. This unassailable supremacy is enunciated in Minerva Mills v Union of India, as, “People of the country, the organs of the government, legislature, executive and judiciary are all bound by the Constitution, which is the paramount law of the land, and nobody is above or beyond the Constitution.” Separation of power was established, while denominating the Constitution as the only sovereign, beyond all else. 

The courts have carried the weight of this supremacy with great diligence. In India, overpopulated and developing, it is a persistent concern that exercising the liberty of one may infringe the liberty of another. The Supreme Court, through its powers of judicial review, can audit whether a law surmounts its limits set by the Constitution. This constitutionally derived power enables the court to protect liberty, as in Anuradha Bhasin v Union of India, where it was held that reasonability of state actions shall be measured against the scale of proportionality. 

Recently, Calcutta High Court set aside a ‘Leave India Notice’ issued by the government to a Polish student in India, involved in the anti-CAA protests, by equating the administrative action to a ‘paranoid overreaction’. Similarly, the Bombay High Court  upheld the freedom of conscience of a school teacher, a non-believer and nullified his suspension for not folding his hands during school prayers. These illustrations embody that restraint of liberty may be warranted, but constitutionally powered checks on the restraint, prevent the becoming of a despotic dictatorship.  

Conclusion: The need to find a balance

What we need is to prevent the tilting of the scale of checks, towards the side of social control. In the recent past, arguably, this tilt has been deepening. Whether it is the excessive use of force against anti-CAA protesters, application of the UAPA on student activists on flexible degrees of suspicion, excessive force against farmers protesting against the farm bills, hastened passing of controversial laws without proper discourse, recurring contempt petitions; without getting into the merit of these issues, what we observe is a marked rise in the shushing of the common man.

While the responsibility towards liberty is not an isolated one, the courts are duty-bound to register their intervention when such liberty is in peril. Consider the Covid-19 situation and imposition of a ‘lock-down’ in light of migrant workers and traders. While the argument isn’t to say that the State cannot put such a restriction at the eve of a pandemic, it is towards questioning a means-ends relationship between the measures and the goal it sets out to achieve. Recall that Covid-19 spreads through close proximity and public health guidelines require ‘social distancing’. An observation of a rapid, all-pervasive ban on individual movement – a restriction on the freedom of movement and trade, which has varying degrees of effects on differently placed citizens, also soliciting selective ostracization  and excessive force, would be arguably, disproportionate.

It is easy to overlook technical niceties in the face of a crisis when our own head isn’t in the lion’s mouth, but isn’t that where the courts step in? 

Notably, the guidelines under the National Disaster Management Act, 2005, or the Epidemic Diseases Act, 1867, themselves largely impose a ban on gatherings and not individual movement. These restrictions can be traced to Article 19(5) and 19(6) under the concern of ‘general public interest’. However, we need the courts to prevent disproportionate restriction in the pursuit of ‘general public interest’ at the cost of that very public. 

While liberty cannot be unrestricted, we cannot undermine the sanctuary of balance. 

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Infusing Personal Laws with modern times: Reconsidering ‘Narasu Appa Mali’ case

In this blog post, I will be discussing the need to reconsider the 1951 judgment of Bombay High Court in State of Bombay v. Narasu Appa Mali (‘Narasu’) where justices Chagla and Gajendragadkar held that uncodified personal laws cannot be tested on the touchstone of fundamental rights guaranteed under Part III of the Indian Constitution. By doing so the Court protected the ‘regressive practices’ from the strict scrutiny and technically, the Court held that these personal laws are above the Constitution (as there cannot be any rights-based challenge) and above the enacted laws made by the democratically elected governments (which could be challenged under Article 13).

The Ghost of Narasu

Ms Indira Jaising, Sr. Advocate termed the judgment of Narasu as a Ghost which still haunts us till date, not for good reasons. In the case of Narasu, the court was considering the Hindu Bigamous Marriages Act 1951 as it was contended that it violates the fundamental rights of the citizens as it discriminates between Hindus and Muslims in cases of polygamy (as per the Law the Hindus were prohibited and criminalised from marrying more than one wife, whereas the Muslims were still allowed to do so). The law was upheld by the Court as it was a ‘liberal, progressive law’ which aimed to eradicate and punish the social evil. Justice Chagla observed in Paragraph 11:

“The Hindu Bigamous Marriages Act is attempting to bring amount social reform is a community which has looked upon polygamy as not an evil institution, but fully justified by its religion. It is also introducing this measure of social reform in a community where the women have looked upon their husbands with reverence and respect.”

The problem is not with the decision itself, but with the reasoning deployed by the Court in reaching the conclusion— by holding that all personal laws are protected from any challenge under Part III (Fundamental Rights), which in turn safeguarded the regressive religious practices indefinitely (unless a law is made by the Parliament). As Chintan Chandrachud states in his book: “if and when personal law was codified by the democratically elected legislature, that would be subjected to greater judicial scrutiny than uncodified personal law lacking democratic sanction”. The Court’s idea of ‘personal laws’ is based on colonial jurisprudence. Warren Hastings plan of 1772 (Article XXIII of the plan) provided that the Quran would apply to Muslims and Shastra(s) would apply to Hindus. This led to the rigidity of religious identities and led to polarisation. The Brahmins and Qazis were called to adjudicate the disputes and to interpret the holy texts which led to contradictory interpretations and in the words of Flavia Agnes (in Oxford Handbook on the Indian Constitution), it led to ‘Brahminisation and Islaminisation of laws’. The effect of the judgment can be seen in various cases it like the judgment of Shri Krishna Singh v. Mathura Ahir(1979) wherein the Court refused to permit a Dalit to become a sanyasi. The Court, unfortunately, held that personal laws cannot be infused with the concept of modern times but they are to be interpreted and enforced as inscribed in religious scriptures and commentaries (Paragraph 31).

Exorcism of Narasu

The Court got many opportunities to overrule the judgment of Narasu. But it has lost many chances and sometimes sidestepped from going into the decision. The court has done so ‘by holding that a practice claimed to be personal law has in fact been codified by statute’. The Court did so in Shayara Bano v. Union of India (2015) wherein the Court held Triple Talaq (Talaq-e-biddat) to be unconstitutional but refused to consider the practice as a part of uncodified ‘personal laws’. Instead of that Justice Nariman held that the practice has been codified in the Shariat Act which can be reviewed by the Court under Article 13. Although Justice Nariman doubted the decision of Narasu (Paragraph 71). The decision of Narasu undermines the Constitution’s transformative nature which aims to eradicate the social evils and transform the society. The liberty of the individuals must not be taken away in the garb of personal laws and it is important to note what Dr Ambedkar said in Parliament on true nature of liberty:

“What are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights.”

After Shayara Bano, Justice Chandrachud in his exceptional judgment (Sabarimala Judgment) noted that personal laws either codified or not cannot detract ‘from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality’ (paragraph 101). If we treat personal laws (uncodified) different from the codified personal laws and make them immune from any rights-based challenge, then it undermines the supremacy of the Constitution. Any personal law which contravenes the equality clauses of the Constitution or any other provision must be ultra vires because in a Constitutional Democracy there is no space for regressive, constitutionally immoral and ancient laws. Interesting in 1996, in the case of Masilamani Mudaliar v. The Idol of Swaminathaswami Thirukoli the Supreme Court observed that any personal law which treats women as inferior is ‘anathema to equality’.

On personal laws, eminent jurist HM Seervai in his commentary on Constitutional Law notes that:

“There is no difference between the expression “existing law” and “law in force” and consequently, personal law would be “existing law” and “law in force …custom, usage and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them”.

Any law whether statutory, uncodified or codified personal law which treats any individual as inferior dilutes the bridge between the rights guaranteed by the Constitution and the self-realisation of those rights by the individuals. As per Justice Chandrachud in Sabarimala, the individual liberties must be recognised as ‘the basic unit of the Constitution’ and this requires that ‘existing structures and laws be viewed from the prism of individual dignity’ (paragraph 100). But even after casting a doubt on the ‘legality’ on Narasu in the Sabarimala case, the Court did not overrule the Narasu judgment explicitly and it remains good in law (symbolically and legally). One category of law, uncodified personal law, is effectively above the Constitution- unfortunately- and the victim(s) of such laws does not have any recourse whatsoever despite having guaranteed rights.

Hope for overruling Narasu

The reasons for overruling Narasu are compelling. The Constitution is a transformative document made for the revival of the society from the various clutches that hold it back. Many times, these personal laws infringe upon the rights of the individuals, in turn holding them from better opportunities which allow an individual to attain liberation (from the oppression of society) and live a dignified life with ‘positive social relationships’.

The Court has observed in Navtej Singh Johar v. Union of India in Paragraph 95: “the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.” The Constitution is structured in a manner wherein it becomes important to realise the needs of changing society to keep itself practical, dynamic and vibrant. The Indian Constitution emerged in the light of historical struggle based on polarisation, discrimination, unequal treatment, lack of opportunities and undemocratic societal setup. Hence, it becomes the task of the Courts to interpret the ‘laws’, whether personal or codified, in a way which cherishes the dignity of all citizens and in the light of the fundamental values enshrined in the Constitution because these personal laws/custom/values of the society affect individual behaviour. Immunising these personal laws from judicial scrutiny will undermine the authority of the Constitution (J. Chandrachud in Sabarimala in Paragraph 99). There is a desideratum to recognise the importance to bring forth these changes and it requires judicial wisdom and political appetite.

 The judgment of Narasu was decided at a time (1951) when the societal conditions were different and it must only be read in the context of that time. But legally, interpretation of the Bombay High Court is wrong and it still haunts us today! To conclude, in the words of Chintan Chandrachud,

“Even the most distinguished judges are prone to error. The greater error lies in the failure to make course corrections despite ample opportunity.” (Page 146)

Therefore, for the reasons stated above, the State of Bombay v. Narasu Appa Mali must be overruled.

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Indian Constitution and Constitutionalism: Transformative Application

[This is a post by Minnah Abraham, Contributing Editor]

Often, the questions, with regard to the formation of the State, persists in the mind of the man right from the beginning, since the emergence of civilization:

“What is the best form of Government”

The answer to the above question brought the emergence of the idea to the origin of constitutionalism and constitutional law, which paved the road to structure and organizing the State, in the form of rules and regulations, requiring the need of law and governance. It was best described by Robert M MacIver,  “When we speak of the estate, we mean the organization of which government is the administrative organ. Even an organization must have a focus of the administration, an agency by which its policies are given specific character and translated into action. But the organization is greater than the organ. In this sense, the state is greater and more inclusive than its government. A state has a constitution, a code of laws, a way of setting up its government, a body of citizens…when we think of this whole structure, we think of the state… Under these endlessly varied circumstances the habits pertaining to government, which at first were centred in the family and kin-circle, found a locus in the inclusive community”

Contrastingly the two terms, constitutional law and constitutionalism differ where the former enshrines the coded form of rules and regulation, determining the principle functions, accepted as binding by all concerned in the Government, while latter explicitly accord specific limitations on general administrational powers to keep a check on the exercise of arbitrary decision-making or powers in the hands of the few. ‘Limited Governance’ is what is presupposed of Constitutionalism, incorporating the element of checks and balance within the constitutional law. From this, arose the fundamental rights and guaranteed remedies, Judiciary acting as the impartial arbiter with independent powers apart from legislative check on the executive. Within these fundamental systems, emerged the concept of judicial review, separation of powers, rule of law, the fundamental right to equality and quality of life, universal franchise transparent executive, ensuring the responsibility to keep an eye on anarchy and the wide possibility of misuse and exploitation of freedom guaranteed by means of reasonable restrictions inserted.

Constitutionalism has become as important an issue which deals with intricacies of good governance, constituting a supreme document that governs the legitimacy of the government’s state actions, implying something beyond the idea of legality requiring official conduct to be in conformity with pre-fixed legal rules. Constitutionalism as the concept that drives through the constitutional law ensures, to effectively check whether the act of a government is in accordance with the laws of the State. This further seeks to effectively regulate the State actions and ensure to adopt the changes in the societal evolution, promising to protect the citizens from the very restrictions and rigidity of the law and order.

As Justice H.R Khanna stated,

“The framing of a Constitution calls for the highest statecraft. Those entrusted with it have to realize the practical needs of the government and have, at the same time, to keep in view the ideals, which have inspired the nation. They have to be men of vision, yet they cannot forget the grassroots.”

Notwithstanding the constant changes in the global trend, the modern application of constitutionalism is increasingly under strain, where more recent turns of events seem to provoke profound changes, forcing a transition towards modern constitutionalism. In what was considered to be most celebrated of the judgements, Navtej Singh Johar vs. Union of India, was the one where the real purpose of the constitution was defined in modern terms, to guide the Nation to a transformation from medieval and hierarchical strata to an egalitarian democracy to enclasp the ideals embedded in the Preamble of the Constitution. It was the modern constitutional interpretation, which chose to protect its very own people from the humiliation and discrimination, rather than follow the static interpretation of the rights of liberty and equality, which were applicable in the yesteryears.

The laws are constantly changing, recall the 73rd and 74th amendments of the Indian Constitution in 1992, which create a fortified third tier of the governance i.e. Panchayats and Municipalities, thereby creating a stronger federal decentralisation within the country. Besides these, the dynamic politics and pressure groups, which reflect the diversity of interests so much so that brought to the point where the power centre has to take heed to the opinion emerging from a relatively small community, which had the power to pull down the government. Triple talaq, the case of Sabarimala, Aadhaar project, LGBTIQ+ Rights, judicial activism forcing to fathom deeper into constitutional interpretation to deliver right justice in order to address the broader societal implications and much more witnessed since the last decade. Shifting the focus to a generation of millennials in this decade, causing issues of collective identity, cultural plurality and multi-cultural society in constitutional democracies and the inherent struggle for recognition and demand for sub-national government. The major hindrance is that the strong accord of modern constitutionalism with an idea of ‘national identity’ has become challenging, to sustain/uphold in an increasingly diverse democratic society. It goes to say, “human experience must be decontextualized, and diverse identities extirpated in order to create a single national identity for each State.” In the unstable cultural-sociological, the rushing of the liberal idea of State neutrality forces the explicit recognition of common cultural identity, which seems impossible for the modern laws to be integrative. Thus, a need ensued for the rethinking of modern constitutionalism and uniform laws, in the current scenario, in which demands for recognition of cultural plurality and sub-state demands, are ever more prominent.

Antonio Negri believed, the ‘ethic’ of constitutional insurgencies is also ‘ethics of transformation’, signifying the power, strength, and movement of the multitude toward contradictions of constitutionalism’s, characterizing life under constitutional code. Constitutionalism needs to stress on,

“the freedom of the members of an open society to change the constitutional rules of mutual recognition and association from time to time as their identities change.”

Justice evolves around the language of communication through constitutional morality, the ‘morality’ as seen as the justification in the eyes of Lord Macaulay for the enactment of Section 377, which changed when read down by the judges, by turning the, then morality upside down, stating that constitutional morality calls for the values that the right to form intimate relationships to be protected as equal and freedom from persecution and humiliation by the law.

The founding fathers of India, BR Ambedkar and Jawaharlal Nehru, explicitly focused on the notion towards aiming for inclusivity in the post-independent India, the profound concept that discrimination against any minority community/population is antithetical to the ethics of constitution and disrespectful to the very people, who have already suffered/oppressed enough.

Although the concept of modern constitutionalism is a long way from the transformation, citing the ambiguous interpretations of the Constitutional law in the daily lives of a common man, eradication the age-old casteism, discriminatory treatment of a large number of diverse sections of Indian society, be it indigenous, women, disabled or on religious sect and building the culture of unity and inclusivity still remains a continuing challenge in India. However, with the recent event of developments on widening the scope of freedom of speech and expression, 2019 being the year of piercing the age-old concepts, for gender recognition and equality, recognition of women promise a change toward India refocusing towards political advocacy and possible reformed legislative amendments.