“If we wish to preserve the Constitution in which we have sought to enshrine the principle of Government of the people, for the people and by the people, let us resolve not to be tardy in the recognition of the evils that lie across our path and which induce people to prefer Government for the people to Government by the people, nor to be weak in our initiative to remove them. That is the only way to serve the country. I know of no better,” said by Dr. B.R. Ambedkar in his last speech in the Constituent Assembly on November 25, 1949.
In the recent spate of articles by eminent voices, an indefensible constitutional paradigm is sought to be invented and mainstreamed. It Is not just alien to our free constitution, it is antithetical to it’s letter, text and its historic evolution. The ‘unelected’, is a pejorative label attached to the civil society, media and lawyers, who they say should heel; Courts should desist from entertaining and giving reliefs in PILs and allow the unquestioned wisdom of the executive to be allowed to prevail. These polemics rage against the ‘the unelected’ for imposing their will on the judiciary.
There are obvious fallacies, inaccuracies and constitutional faux pas in these arguments.
Take scenario No.1: a company faces an assessment which imposes a huge tax liability. The government wants that the tax demanded to be paid. The company challenges the tax demand in court. Is this legal action to be treated as an attempt by ‘the unelected’ to secure a judicial verdict against the wishes of the elected government?
Now, let us consider the scenario No.2: millions of migrant workers, having lost their jobs and their salaries, have commenced the long walk to their villages. The scale of the tragedy of this trek is unprecedented in modern history. It would do well to remember that Indian Railways, set up in 1847, runs 20,000 trains to over 7000 stations. It is a connect which these millions have to a humane and civilized exit from starvation. Concerned citizens, on behalf of the million migrants repeatedly engage the court, to secure them their fundamental right to life under article 21. This is labelled as an attempt by the ‘unelected’ to pressure the judiciary to act against the elected majority. Can the pursuit of the civil society for the rights of these millions be labeled as an ‘enforcement of pseudo-constitutional rights’?
The jurisprudential distinction between the two situations is illusory. In fact it is not even real. The company in scenario 1 approaches the court on its own strength. Whereas the civil society takes up the cause of the migrating millions. There would have been, one guesses no quarrel if the migrants could have individually engaged lawyers, filed petitions, and argued each individual case. The absurdity of this procedural demand is patent.
This argument of the ‘locus’ of the civil society is based on an dated Anglo-Saxon premise. It has been long ignored even in the country of its origin, the United Kingdom. Just to illustrate, in an action filed by the legal NGO ClientEarth, the UK Supreme Court in 2015 issued directions against the government to enforce Euro directives on pollution levels. Thereafter, in 2016 and 2018, ClientEarth once again secured directions from the High Court against the government to reduce the unacceptable levels of pollution in 33 cities and towns in United Kingdom. Even in the U.K, it is treated as an anachronistic procedural bias.
The argument then asserted is that political matters cannot be touched upon by the courts. This again is an outdated and by now a far-fetched argument almost everywhere, be it in India, U.K., USA, Sri Lanka or for that matter in any Western democracy. The 11 judges of the UK Supreme Court unanimously held the Prime Minister’s action of the sudden prorogation of the Parliament as illegal [R (on the application of Miller) v The Prime Minister, 2019]. It rebuffed Boris Johnson’s lawyers’ clichéd ‘hands off it’s a political question’ argument. The Court ruled, “many if not most of the constitutional cases in our legal history have been concerned with politics in that sense”. The recurrent illustrations of U.K. cases is because, calls for conservative judicial responses are often citied from outworn cases from the U.K.
The authors advice the Judges to be restrained, because, judges are appointed and not elected. The phrase ‘unelected judges’ creates the image of an undemocratic lesser wing. This is a misguided understanding of the function of Constitutional Courts in democracies. The judiciary’s existence is not to express articles of faith in the executive or the legislature. The judges are there to see that governance goes on in accordance with the mandate of the constitution.
This fortunately was settled long ago by the US Supreme Court in Marbury v. Madison (1803). There was and never is a quarrel with this proposition. The newly elected President Thomas Jefferson did not want the Commission of a Justice of Peace to be given to Marbury who was appointed by the previous outgoing President. Chief Justice John Marshall asserted that Constitution was the “paramount law of the nation” and the will of the executive had to give way to the supremacy of the Constitution. Thankfully this judgment is endorsed by our Supreme Court as a truism several times over.
There is also the opinion that the media highlighting inaction of the executive is undesirable and unwarranted. Somewhere, the core of democracy appears to be lost in translation. It is the media and the civil society which witness and chronicle events and operation of policies at ground level. The information they disseminate is a vital catalyst for commencing and calibrating responses of the government. Nobel Laureate Amartya Sen said, “No famine has ever taken place in the history of the world in a functioning democracy”. He had empirically demonstrated no famine occurred in India since independence in 1947. He explained that democratic governments “have to win elections and face public criticism, and have strong incentive to undertake measures to avert famines and other catastrophes.”
Then, there is this flawed refrain, which often writers on constitution fall prey to, that the British transferred power to the three wings of the government. Did it? Really? The argument missed the crucial component of the polity, ‘we the people’.
Ambedkar, who was so well versed in the history of constitutions, was fully conscious that this misconception would sooner or later percolate into the system. In one of his earliest addresses to the Constituent Assembly, he referred to the stand of the 1936 AICC resolution at Faizpur which stood for “a genuine democratic state in India where political power has been transferred to the people, and the government is under their effective control.” This resolution was echoing the sentiment expressed by Mahatma Gandhi as far back as in 1922 who said “The British Parliament, when the settlement comes, will ratify the wishes of the people of India as expressed through freely chosen representatives”.
It cannot be wished away from our constitution that ‘We the people’ are the ultimate repository of power. In fact, it would pay to study a remarkable judgment of the Supreme Court of Sri Lanka in 2018 when asked to decide upon a challenge of the actions of the President who had gone rogue. A unanimous Seven-Judge Bench of Supreme Court of SriLanka headed by H.N.J. Perera, CJ cited a 1985 judgment of the Court which perspicaciously noted“A solemn and sacred duty has been imposed by the Constitution upon this Court, as the highest Court of the Republic, to safeguard the fundamental rights which have been assured to the citizens of the Republic as part of their intangible heritage. It, therefore, behoves this Court to see that the full and free exercise of such rights is not impeded by any flimsy and unrealistic considerations.”
On access to the Court in eloquently stated ‘the inalienable right of every citizen of our country to invoke the fundamental rights jurisdiction of the Supreme Court is a cornerstone of the sovereignty of the people which is the Grundnorm of our Constitution’. The Court gave a powerful message on the legitimacy of ‘we the people’ and the courts role in “giving tangible and effective life and meaning to the sovereignty of the people.”
There are in these polemics, a selective amnesia of the path breaking decisions which guide the jurisprudence of PILs. In Bandhua Mukti Morcha (1984), the Supreme Court enabled, anyone to activate the court for people “unable to approach the court for judicial redress on account of poverty or disability or socially or economically disadvantaged position”. In Sachidanand Pandey v. State of W.B. (1987), the court gave a clarion call to access the courts when it “shocks the judicial conscience”. In Janata Dal v. H.S. Chowdhary (2000), it was said that the rules of locus was to be relaxed to “wipe out the tears of the poor and needy, suffering from violation of their fundamental rights”.
The active intervention of civil society, the vigilant press, the lawyers and the scores of Indians who rallied for the safe passage of the migrants is an assertion that ‘we the people’ are a vital and an active participant in the working of the Constitution. That’s how our founders designed our Constitution. Any paradigm sought to be constructed to the contrary is untenable.
The Author is Senior Advocate, the Supreme Court of India