The eternal question worked on by both natural and analytical jurisprudes is the existential crisis of law. Though all schools of thought differ on where the Law comes from, they concur unconditionally on the need for its continued existence as moral regulator and ethical compass of the society. So the present day political debates revolve more around the legal structure, its prescription and limitation, than on its continuation or instrumental replacement. One such limelight legal debate is the conflict of complementing provisions in Indian Constitution – individual rights vs national duties.
The Essential Divide of Divinity and Rationality:
In the evergreen words of Emile Durkheim, “Law is a social fact; the collective consciousness of society codified to govern acts of citizens in order to ensure social harmony. More specifically, civil law codifies norms of conducts between individuals in society; although acts which are categorised as criminal acts are done against individuals, they are an attack on the organic solidarity of society. Criminal acts are thus not only harmful to their victims but also to society.”
In reality, law is fundamental to the creation of a democratic society. In kingships, theocratic governance or dictatorships, there is no place for law because the king or dictators’ will is law. A king is said to be ordained by God to act and whatever he does is law as duly sanctified by divine power. As was witnessed in ancient India governed by Manu’s principles, theocratic systems of governance were much worse. According to Manu’s principles, a Brahmin priest was the interpreter of messages from God and a king was required to follow the same.
However, in democratic societies, since people govern themselves, the laws that emerge must be rational. In modern democratic society, law could thus be defined as rationality codified – where the code is pragmatic and acceptable to society. The Constitution is the primary law of a democratic society because it is codified by the people of a country through discussion and deliberation; they codify the rules defining power of various organs of the government along with general principles of governance; it is the reflection of our collective consciousness, embodying popular will.
Is The Need For Flexibility A Rigid Rule?
Indian constitution was mainly drafted by Dr Ambedkar. All its provisions were adopted by the Constitution Assembly (which was the elected body albeit by limited franchise) only after deliberation. Since these provisions came about by the decisions of one generation of law makers, there was a requirement for an arrangement which would ensure that the future generations would not be bound by out-dated laws. This need gave birth to the provision of amending the constitution (Art 368 in our case). Pt. Jawaharlal Nehru had explained the need to make the Constitution flexible existed because a rigid Constitution could lead to running the “risk of destruction by future generations if it comes in the way of their growth.”
The creation of this provision led to a massive debate particularly when the Constitution was amended to give effect to Directive Principles (Part IV) and the ensuing conflict with Part III. The Fundamental Rights enumerated in Part III are fundamental to human beings and also to democracy. Their enforceability is crucial because the liberty of nation is meaningless unless citizens have liberty of thought, expression and belief and freedom of liberty against unlawful acts of the government. Hence, the Part III public rights are enforceable through writ jurisdiction as well as by the power of judicial review under Art. 13(2); the Parliament cannot make any law, which takes away the fundamental rights stipulated in our Constitution. The Supreme Court ruled in A.K. Gopalan case that even amendment to the Constitution is law as per Art. 13 and any amendment which violates a fundamental right is illegal/ unconstitutional and need to be struck down. This decision put severe restriction on the Government’s attempt to implement directive principles which are, to quote Dr Ambedkar, fundamental to governance.’
A Dire Need for Directive Principles:
Dr Ambedkar was asked by some members of the Constitution Assembly about the purpose of these directive principles since they are not enforceable in a court of law like fundamental rights. Dr.Ambedkar had remarked that “in a country where 80 % of population is uneducated and have no required wealth for honourable existence demand for this basic need immediately, the nascent republic will collapse simply as it is not having resources to fulfil these demands. But in a country with majority of population as poor and uneducated, no government can ignore these directive principles, because it will have to give answer to majority of population in election. The directive principle may not be justiciable in court of law but are justiciable in highest court of democracy that is, the court of people.”
The ruling in the A.K. Gopalan case also generated some strife between law makers and courts. This decision, apart from raising issues associated with the difficulties in implementing directive principles, also brought up parliament’s sovereignty, epitomise wisdom of society and how restriction can be put on its power.
Head-on-Clash to Harmonious Construction:
The long standing debate resulted in the Supreme Court’s ruling in Keshvanand Bharti case which recognised the power of parliament under Art. 368. When the Parliament amends the Constitution by invoking its power granted under Art. 368 and following procedure stated therein, Art. 13(2) does not circumvent its amending power. The Constitution makers did not limit the power to amend Constitution in Art. 368 but only the law making power is restricted under Article 13.
Naturally there cannot be any restrictions on the amending power of the parliament on the ground that it would violate fundamental rights. However, the Courts have led to the evolution of the doctrine of creator and creation. Article 368 ruled that the basic structure of constitution cannot be violated while amending the constitution. Hence, while exercising its power, the Parliament – being the creation of the constitution – cannot destroy the creator (i.e. the Constitution).
This principle was further elucidated in Minerva Mills case where the Supreme Court discussed the basic structure of the Constitution and of the harmonious synchronicity between fundamental rights and directive principles. The Honourable Court stated that fundamental rights and directive principles are similar to the wheels of a chariot which cannot function if one wheel is given priority over the other or if one wheel is defunct. Ultimately, the SC ruled that harmonious construction between directive principles and fundamental rights is effectively the ethos of the structure of the Indian constitution.
The true democratic spirit lies in avoiding the head-on-clash between complementing core provisions and fine-tuning our legislative frequency to fit the harmonized mean level between public rights and sovereign duties; the delicate balance of rigidity and flexibility in our fundamental document is the desired popular will and shall not, in any case, be abrogated by a sovereign mandate. Although our Constitution provides for this fine balance between different organs of governance, it can only prevent elected despotism if constitutional morality exists. As Dr.Ambedkar precisely stated, “Constitutional morality guarantees that, in situations where the use of discretion is warranted, decisions are not taken on basis of majority but through consensus which is ensured by following convention and conducting discussions. Despite our Constitution being both rigid and flexible to be workable, if the leaders of a nation lack constitutional morality, the Constitution itself gets reduced to a mere document without any bite.”
DISCLAIMER : Views expressed above are the author’s own.