Judicial Supremacy and The Indian

Judicial Supremacy and the Indian Constitution

BY Prof. S. VENKATARAMAN, B. A., M. L.
(College of Law, Andhra University, Waltair)

Judicial supremacy in a Constitution ensures to the citizens protection against both executive as well as legislative tyranny. In the case of written Constitutions in particular, with defined powers of the several governmental organs or with defined powers of the different units of a composite or federal State, the doctrine of judicial review secures the rule of law. Where the powers of a legislature are limited, whether the limits relate to territorial jurisdiction or to subject-matter, the validity of its acts can be scrutinised by the tribunal before whom the question is raised, however supreme within its appointed sphere the legislature may be. England and the United States of America afford examples par excellence of the operation of the rule of law in democratic Constitutions. The Indian Constitution has taken ideas from the Constitutions of both these countries, the former of them being the champion of Parliamentary supremacy and the latter the country where Judicial supremacy is in full operation. It would therefore be useful to inquire how far the provisions of the Indian Constitution have ensured the rule of law.

Life, liberty and the pursuit of happiness are the aims of all democratic governments. But the concept of liberty has never been an absolute or constant. It has stood related to time and place, environment and history. Among the highly cherished liberties of the West are political and civil liberties. Modern emphasis on economic rights, associating social welfare arrangements with liberty, has pushed to the front a new concept of freedom. Individual liberty is sought to be directly related to the status of the society. In Soviet Russia, for instance, social and economic rights, such as right to work, to leisure, to security in old age, etc., are considered to be more paramount than political and civil rights. The essence of individual liberty is held to consist in the citizen’s chance to grow and to rest on the freedom and opportunity available to him to develop himself and obtain social recognition in the process. It is felt that economic equality, in the sense of economic opportunity, must precede the flowering of individual freedom. Governmental guidance has been made compulsory and external restraints have been imposed on citizens to achieve the object. The strictures of conformism will no doubt affect creative effort. Since maximum attainment in any society turns on higher creative activity of its individual members, it is essential that citizens should have in a large measure genuine freedom from external restraints. England and the United States had developed economic systems which had made them prosperous and wealthy, and so, from early times, emphasis was placed on sanctity of individual rights, and attempts were made to secure to the citizens the largest possible amount of political freedom and the maximum of civil liberties.

It is axiomatic that without an organised society there can be no safeguard of individual rights. It is also true that in an organised society there can be no absolute or unrestricted individual rights. It has been observed that “the liberty of the individual to do as he pleases even in innocent matters is not absolute. It must frequently yield to the common good”.¹ In the words of Prof. Jaspar, ‘the genuinely human State achieved along with power a simultaneous limitation of power, because it aims at rendering justice”. Civil liberties imply the existence of an organised society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.² Rule of law may be achieved through enlightened public opinion, the moral value of traditions and intelligent political consciousness, or by writing into the Constitution of certain rights as fundamental and transcendent rights of the citizens. The former process operates in England. In the United States, the latter device has been resorted to. It is true that there is often the complaint that

“Freedom that was a thing to use,
They've made a thing to save;
And staked it in and fenced it round
Like a dead man’s grave.”

The Judiciary is everywhere the guardian of individual rights. There is however a difference between England and the United States in regard to the sphere within which it can play the role. In England, the Constitution is unwritten. There is no code of fundamental rights. In the words of Lord Wright: “In the Constitution of this country there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved.”³ It is somewhat paradoxica1 that England is the home both of the rule of law and the sovereignty of Parliament. Parliament is omnipotent and omnicompetent. No Act of Parliament can be held to be void by a court of law. Checks on Parliament have been dispensed with as not being really wanted. In practice the pressure of public opinion has been a sufficient safeguard against an abuse of its powers by Parliament. In the words of Sir Erskine May: “The Constitution has assigned no limits to the authority of Parliament over all matters and persons within its jurisdiction. A law may be unjust and contrary to the principles of sound government. But Parliament is not controlled in its discretion, and when it errs, its errors can be corrected by itself.” There can thus be no judicial review of Parliamentary legislation.

This was not always so. During the Middle Ages municipal law was believed to derive its efficacy from divine law. Absolute sovereignty of Parliament could not therefore be formulated. It had in those times been admitted that an Act of Parliament could not operate within the sphere of the Church. The limitation proceeded on the analogy of the Church to a foreign sovereign State. Also the idea of a fundamental law had appeared as early as 1578 and exercised influence till about 1710 as a practical principle in the law courts. Both Crown and Parliament were sought to be subjected to such a paramount law by Coke, and some decisions applying the theory had held that legislative acts against common right and reason and in contravention of fundamental law were of no validity.⁴ It was thus said: “Even an Act of Parliament made against natural equity as to make a man judge in his own cause is void in itself; for jura naturae sunt immutabilia and they are leges legum.”⁵Chief Justice Holt had regarded it as part of the Judge’s duty to “construe and expound Acts of Parliament and adjudge them to be void.”⁶ Subsequent events like the establishment of the Reformation Settlement and of new forms of religion and changes in the succession to the Throne had proved that there were no legal limitations on the powers of Parliament. The position was authoritatively defined by Justice Willes as follows:

“I would observe as to these Acts of Parliament, that they are the law of this land; and we do not sit here as a Court of Appeal from Parliament. It was once said...that if an Act of Parliament were to create a man judge in his own cause, the court might disregard it. That dictum, however, stands as a warning rather than an authority to be followed. We sit here as servants of the Queen and the Legislature. Are we to act as regents over what is done by Parliament with the consent of the Queen, Lords and Commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the Legislature to correct it by repealing it: but so long as it exists as law, the Courts are bound to obey it. The proceedings here are judicial, not autocratic, which they would be if we could make laws instead of administering them.” ⁷

Though the courts in England cannot question the validity of Parliamentary legislation, they have yet power to examine the validity of rules and bye-laws passed under the cloak of such legislation. They can also examine the legality of the acts of municipal bodies and corporations constituted under an Act of Parliament. Again real encroachment on the liberties of people in an advanced democracy like England can only be through acts of the Executive, and against this type of tyranny the courts function as real bulwarks and give effective protection. Lord Atkin stated the principle thus: “In accordance with British jurisprudence, no member of the Executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the Executive.⁸

In the United States of America, the Supreme Court has become “the balance wheel of the Constitution.” The American Constitution was framed after a successful revolution and on the then existing realities of state autonomy and individual rights. It sought to provide against both executive as well as legislative encroachments. In the words of a learned Judge: “It is not to be disguised that the framers of the Constitution viewed with some apprehension, the violent acts that might grow out of the feelings of the moment, and that the people of the United States in adopting that instrument have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed.”⁹ The Constitution has provided for a diffusion of sovereignty and for constitutional sanction being a sine qua non for every act of the Government. The Constitution being federal, it has distributed sovereignty by vesting the federal government with certain enumerated powers leaving the residue to the state governments. It has also provided for a separation of powers between the different organs of government, at the same time guaranteeing individual rights in certain matters. The Constitution so framed has through a combination of political usage and judicial interpretation been made a flexible instrument. There is no specific Article in the Constitution vesting jurisdiction in the Supreme Court to veto an Act of the Congress as Unconstitutional. According to Chief Justice Marshall, judicial supremacy flowed from the inner logic of the Constitution and the special province of the Judiciary to declare what the law is.¹⁰ During the early days of its history, its main task was to reconcile national authority with state sovereignty. Later on, it had to deal with what might be called the basic problem of reconciling liberty with authority, and individual freedom with national organisation. Article III (2) of the Constitution stated that the Court shall decide “all cases arising under the Constitution”. Article VI (2) laid down that “the Constitution and the laws of the United States made in pursuance thereof shall be the supreme law of the land.” These two provisions together formed the basis of the establishment of judicial supremacy. The Court claimed thereunder the power to adjudge upon the competency of legislation. Also the 5th Amendment to the Constitution directed that no person was to be deprived of his life or liberty or property except by due process of law. This was as regards the Union. The 14th Amendment gave the same direction in regard to the States. The courts thereby came to examine laws to satisfy themselves weather the laws offended the “spirit of the Constitution” and declare them void if there was such violation. Laws thus came to be scrutinised not merely as regards competency but as regards their inherent goodness as well. Again, in the United States, no limitation had been imposed upon any of the fundamental rights added to the Constitution by the first ten Amendments made in 1791. These rights could be touched, if at all, only by amending the Constitution. Again the 9th Amendment to the Constitution had expressly provided: “The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained in the people.” This meant that any legislation, though not affecting the enumerated fundamental rights, may yet be declared void as being repugnant to the natural rights of the people. Not even danger to the security of the State nor emergency would justify the curtailment of such rights. It was, however, soon realised that for maintenance of public order, prevention of corruption of public morals, etc., some limitations will of necessity have to be imposed on the liberty of the individual. It was judicially recognised that such limitations could be imposed by way of what were called “police powers” of the State. The doctrine was rested on the principle that “the whole is greater than the sum total of all the parts, and when the individual health, safety and welfare are sacrificed or neglected the State shall suffer”¹¹ Under the guise of “police powers” the State can regulate the exercise of individual rights in the collective interest. The determination, however, by the Legislature that the concerned matter fell within the scope of such powers is not conclusive. It is the Court that should be so satisfied.¹²

The interpretation of the American Constitution has been influenced in a measure by what has been termed “the intentions of the people”. Importance is also attached to legislative discussions, reports of Committees and other external aids. The British practice is quite different. The courts will not look at the preliminary discussions (called in the Continent travaux preparatoires) or to the Parliamentary debates to elucidate the meaning.¹³ Prof. Frankfurter sums up the position thus in his book on the Supreme Court: “Whereas British Courts approached the interpretation of the Constitution on the principle that the Constitution must speak from within, the American Courts have to a certain extent approached the problem from without.”

The Indian Constitution has striven to maintain a balance between individual rights and collective interests. It has followed the American model in enunciating certain rights as fundamental. The Preamble recites that it is the aim of the Constitution to secure to all the citizens of India: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity, and to promote among them all Fraternity assuring the dignity of the individual and the unity of the nation. Part III sets out the fundamental rights. Article 13 (1) enacts that existing laws, in so far as they are repugnant to the rights mentioned in Part III, are to that extent void. Sub-clause (2) of the Article provides that no law can be made hereafter which takes away or abridges the rights conferred by Part III. Article 32 provides for the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III. Article 141 enjoins that the law declared by the Supreme Court shall be binding on all courts within the territory of India. All authorities, civil and judicial, are directed by Article 144 to act in aid of the Supreme Court. There are in the Indian Constitution no unenumerated or natural rights reserved in favour of the citizens. Some of the rights set out in Part III arise in virtue of inhibitions laid on the State, as for instance, in regard to discrimination. These prohibitions are binding both on the Executive as well as the Legislature and the court can declare void any law found to be in violation thereof. Certain other rights such as the right to life and personal liberty are subject to regulation by the Legislature. Article 21 enacts that no person shall be deprived of his life or personal liberty except according to procedure established by law. In regard to rights like freedom of speech, both executive as well as legislative authorities are permitted by Article 19 to impose reasonable restrictions in the interests of the public. In every case it is an abuse of the freedom conferred that is sought to be controlled.

Apart from the vista thus opened for judicial review of acts of the Executive and Legislature, there is the further fact that the Indian Constitution is of the federal type, whether of the orthodox pattern or not. Consequently there is a distribution of powers between the Union and the Units. There is a careful enumeration of powers in 3 Legislative Lists. The first is the Union List with 97 items. The second is the State List with 66 items. The third is the Concurrent List with 47 items Article 245 (1) provides that the legislative powers set out are always subject to the provisions of the Constitution which would, of course, include Part III dealing with fundamental rights. Under Article 28 any matter not covered by any of the Legislative Lists is reserved for the Union. Very often questions do arise as to which Legislature, the Union Parliament or State Legislature, is seized of a particular subject of legislation. The validity of legislation may fall to be examined by the courts in that way as well.

It is true that the Indian Constitution does not provide for individual rights existing as natural rights, apart from the rights regarded as fundamental under Part III. It is also true that unlike the American Constitution there is no Article expressly vesting the judicial power of the Union of India in the Supreme Court. At the same time it falls to be noted that, though many of the principles of the English Parliamentary system have been adopted, the Constitution has not accepted the principle of Parliamentary supremacy in matters of legislation. Also, so far as Part III is concerned, it is the American model that has been followed, and under Article 32 the Supreme Court is made the guardian of the rights enunciated in that chapter. To that extent the Constitution remains supreme. And as is made clear by Article 245, a statute law to be valid must in all cases be in conformity with the constitutional requirements and it is for the Judiciary to decide whether any enactment is unconstitutional or not.

The different Articles of the Constitution contained in Part Ill came up for examination for the first time by the Supreme Court in A. K. Gopalan’s case.¹⁴ Apropos of the power of the Supreme Court as an interpreter of the Constitution, Kania. C. J. stated:

“There is considerable authority for the statement that the courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words...It is difficult upon any general principles, to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority...It is only in express constitutioual provisions limiting the legislative power, and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation, that one can find a safe and solid ground for the authority of courts of justice to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the Judiciary, powers too great and too indefinite either for its own security or for the protection of private rights.”

It may be submitted, with respect, that the statement is over-charged with caution. The British approach to the interpretation of the Constitution has been adopted rather than the American. It is from without and not from within that the approach should be made, particularly because Part III is fashioned after the American model. Again, as was recognised by Patanjali Sastri J. “in construing these provisions the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne in mind.” In the Constitution of the United States the legislative power is no doubt vested in the Congress and in a sense it is the supreme legislative power. The written Constitution is however supreme above all the three limbs of the government, and checks and balances have been provided so as to prevent any one limb from paralysing the others. Still the Supreme Court has established its supremacy over the Executive and the Congress, mainly through a reference to the spirit of the Constitution brought out in particular by the 5th and the 14th amendment, providing, “Nor shall any person be deprived of life, liberty or property without due process of law”. ‘Due’ in the phrase “due process of law” was taken to mean ‘just’, and ‘law’ was held to refer to principles of natural justice. These were not wild assumptions. The Magna Carta in the 39^th chapter provided that “no free man shall be taken or imprisoned or disseized...but by the lawfu1 judgment of his peers and by the law of the land”. The words “due process of law” appeared during the reign of Edward III in the Statute of Westminster of the Liberties of London, guaranteeing that no person will be deprived of his property or imprisoned or indicted or put to death without being brought in to answer by due process of law. The expression “due process of law” had been regarded by Coke and others as signifying the same thing as ‘law of the land.’ The American colonists had carried with them these concepts and in that way the phrase “due process of law” had crept into the American Constitution. It also got into the Constitutions of some of the Constituent States, either in that very form or in the form of such phrases as “in due course of law” or “according to the law of the land.”¹⁵ All these phrases had been, broadly speaking, held to refer to the principles of natural justice. In course of time the phrase was restricted in its meaning to what was quaintly described as “procedural due process”.¹⁶ Article 21 of the Indian Constitution provides that no person shall be deprived of his life or liberty except according to the procedure established by law. In the Indian Constitution the words used are “procedure established by law”. In the American Constitution they are “due process of law” identified with what was called “procedural due process.” The provision in Article 21 had its genesis admittedly in Article 31 of the Japanese Constitution. It is instructive to look into the roots of that provision in the Japanese Constitution. In October 1945 the Japanese Cabinet had been asked by General MacArthur to take steps for framing a Constitution for Japan. But as progress was slow, in February 1946, it was decided to have the matter taken over by General MacArthur’s Headquarters in its Government section. Thereafter the Constitution was drafted with the assistance of American lawyers. It has been said that the Constitution bears strongly the impress of American ideas.¹⁷ One of the chapters of the Constitution deals with the “Rights and Duties of the People”. One of the Articles in that chapter was Article 31which stated: “No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed except according to procedure established by law.” It is quite conceivable that, having regard to the American influences that operated on the drafting of the Japanese Constitution, the phrase “procedure established by law” in Article 31 was a substantial reproduction of the phrase “due process of law” in the American Constitution. Article 31 of the Japanese Constitution had that evolutionary history and it may therefore be plausibly argued that the phrase; “procedure established by law” in Article 21 of the Indian Constitution should, in the circumstances, have received the same interpretation as the words in the comparable context of the Japanese Constitution, which, according to American authorities, were intended to mean the same thing as procedural due process. Mr. Justice Fazal Ali seems to have considered the argument as not fanciful. Anyway, for the reasons stated, it looks as if a less conservative approach to the interpretation of the Judiciary’s position in the Indian Constitution would have been amply justified. The deliberate choice in favour of the English rather than the American approach means that the Supreme Court has denied to itself the larger area of judicial review which otherwise it would have had.

¹ Atkins v Children’s Hospital, (1923) 261 U. S. 525.
² Cox v New Hampshire, (1941) 312 U. S. 569.
³ Liveridge v Anderson, (1942) A. C. 206, 261.
⁴ Dr. Bonham’s case, (1610 8 Rep. 114; Day v Savadge, (1614) Hob. 85 City of London v Wood, (1701) 12 Mod. 609; The Duchess of Hamilton’s case, (1712) 10 Mod. 115.
⁵ Day v Savadge, (1614) Hob. 85.
⁶ R. v Earl of Banbury, (1695) Skin 517,527.
⁷ Lee v Buds and Torrington Junction Ry. Co, (1877) L. R. 6 C. P. 576.
⁸ Eshubagi v Government of Nigeria, I. R. (1931) A. C. 662 (P. C.)
⁹ Fletcher v Peek, (1810) 6 Cr. 87.
¹⁰ Marbury v Madison (1803) 1 Cr. 173.
¹¹ Holden v Hardy, (1896) 169 U. S. 366.
¹² Meyer v Nebraska, (1923) 262 U. S. 39o, 400; Bridges v California (1941) 314 U. S. 252, 263.
¹³ Assam Railways Trading Co. v Inland Revenue Commissioners, I. R., (1935) A. C. 445.
¹⁴ (1950) S. C. J. 174
¹⁵ Cooley on Constitutional Limitations, 8th edn. Vol. II, pp. 734-735.
¹⁶ Carl Brent Swisher, “The Growth of Constitutional Power in the United States”, p. 101.
¹⁷ “Modern Foreign Governments” by Ogg and Zink.