JusticeMuzaffar
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Of late, nation has witnessed some intense sparring between two camps who have taken extreme opposing positions on the Supreme Courts authority to strike down constitutional amendments. To my simplistic mind both viewpoints seem to get propulsion largely from politics dished up though with a veneer of law of Constitution. Barrister Eitzazs view, as I have been able to understand, that the Supreme Court cannot at all check on a constitutional amendment seems somewhat out of the way when contextualized in the latter-day development of Constitutional law as seen, among other jurisdictions, in the United States and nearer home in India where the Supreme Court has come up with so-called doctrine of Basic Structure, which is being increasingly referred or approved even though yet not fully hallowed in definite contours.
On the other hand the opposing view, no less extreme, seems predicated on the assumption that any tinkering with the Constitution which even marginally effects a change in any of such features which are considered to characterize the Constitution is a taboo, and therefore liable to be struck down. Were it so, one may ask, where was the need for Article 239 which on this view with its various clauses will be rendered otiose. And law presumes against superfluity. As such this view too one finds difficult to buy. Clearly, a basic feature to come under the lee of this doctrine which the Supreme Court as guardian of the Constitution is there to uphold, has to be too basic, tampering of which by reason of not being perceived kosher sends shock waves strong enough to arouse discerning sensitized sections of society to rise in non-acceptance. Simply put, change must be such which flies in the face of the grundnorm doing a kind of turnaround and in consequence ends up in remoulding the very template which was used and is intended to be used as guide for crafting or re-crafting of the Constitution. That is to say not every modification, however material, as long as it steers clear of societys edeas recues on political existence is liable to be shot down as unconstitutional.
Let us make an attempt to discover the rationale behind the genesis of the above doctrine to comprehend true dimensions of its implications:
Constitution in a limited sense is not adventitious, it gradually grows out of a particular social milieu as from a chrysalis containing a value system and entrenched social mores of a community who decide to live on a defined territory in pursuit of happiness, to lay low their fears and fulfil their aspirations. Once this living arrangement evolved and agreed upon among the stakeholders is formalized into a Constitution, its progenitor, the dominant value system, out of which it came out, just the same from that moment walks in lockstep with it so to speak as its double, an alter ego. It remains amorphic and invisible yet no less real keeping constant watch against any attempt at its defilement. Thus the document of Constitution provides only a manifest cover to the real thing, communitys ideal or the world-view (Weltan Schauung), as does rind to the kernel. If the rind (shell) is manipulated without hurting the kernel it is all fine and permissible. Indeed often desirable if unavoidable to access the kernel. On the other hand if by tampering kernal itself is damaged or comes under threat such exercise will be beyond a parliaments routine license to amend. As with most organisms, a Constitution cannot be presumed to visualize its own extinction. Therefore the power to amend cannot be deemed as unlimited but only to the extent it promotes its health and makes it more efficient to survive longer to better serve changing societal needs, just as in submitting to a surgeons knife for an invasive procedure a patient cannot be presumed to have given him the license to kill but only a consent to unavoidable hazards of the procedure. Amending a Constitution thus is essentially a corrective surgery with obvious limited scope; not a surrogacy to bring forth a new foetus.
No express constitutional provision, undoubtedly, delineates the above indicated parameters but this is a necessarily implied circumscription inbuilt in the very purpose for which constitution come into existence: to facilitate a people to live their dreams to graduate to realizing their cherished world-view. This kind of consubstantiality existing between a Constitution and the antecedent fluid mass of values which had crystallized into the former in the first place remains one constant to ensure that the spirit of the Constitution is not violated by the periodic chops and changes in the body of the constitution made necessary to keep pace with moving times.
If that value system (or ethical precepts) endures in pristine status all the parliament has the authority to do is to amend with a view to flesh out the spirit of the Constitution to advance its objects which remain either hidden or misunderstood for want of adequate expression. Beyond that it is a no-go area for the ordinary legislative Assembly which without mandate cannot turn itself into a Constituent Assembly. Amending a constitution is not same thing as writing a new Constitution. This distinction must not be blurred. And Article 239 giving immunity to such amending power against judicial scrutiny must be read in this context.
If conversely a change of extraordinary importance in social climate occurs creating a new ethos manifested in espousal of new beliefs and values embodying the spirit of the Age (Zietgiest) and pushing for recognition this would be a subject for a new Social Contract. Such contract can only be undertaken by all the stakeholders indirectly through a Constituent Assembly or directly through a referendum.
As for claiming carte blanch for the parliament because it represented a whole people as against the Supreme Court consisting of 17 odd-Judges, I am afraid, the argument is specious among other things missing the point that the Judges sitting on the ultimate Court as indeed any other State functionaries including a lowly clerk nominated to their offices by legitimate exercise of State Power by the designated-authority shall be as much deemed representing the will and authority of the whole people whence in the last analysis they indirectly derive their commission to officiate supported by States force majeur. Only difference if any being in the circuitous route it takes. Moreover, as questioned by an eminent lawyer if the parliament by the sole reason of being representative of people has the authority to overarch everything as final arbiter, then why by the same token ordinary laws passed by the self-same parliament with somewhat, lesser votes are not immune from judicial review?
That an Assembly chosen for ordinary law-making cannot be a Constituent Assembly was sufficiently illustrated by the Indian Independence Act, 1947 in specifically assigning twin clearly demarcated roles to the Federal Legislature.
Having examined both sides of the proposition, I am of the opinion that in the context of ongoing debate the protagonists of the Supreme Courts authority to strike down the new amendment seem on a weaker wicket in that none of the ingredients of the new method including bipartisan parliamentary oversight for appointment of Judges really cuts a swathe through Judges bailiwick calculated to compromise independence of judiciary threatening basic structure of the Constitution. In any case mechanism of appointments essentially belongs to the executive domain and little to do with post-appointment judicial functioning as such. Therefore assigning some secondary role to a nations parliament is not a monstrous innovation unheard of in the rest of the civilized world. After all courts do not claim a distinct sovereignty. Even otherwise taking a holistic view, dominant element in the Judicial Commission where the nominations are to be effectively finalized being the sitting Chief Justice aided by his senior associates, it seems somewhat pernickety to make issue of an inconsequential provision which in any case in practical terms I see destined to remain dead as a doornail, and the Honble Judicial Commission having the last laugh.
Justice (R) Muzaffar H. Malik
Former Chief Judge Northern Area
http://muzaffar-malik.blogspot.com/
On the other hand the opposing view, no less extreme, seems predicated on the assumption that any tinkering with the Constitution which even marginally effects a change in any of such features which are considered to characterize the Constitution is a taboo, and therefore liable to be struck down. Were it so, one may ask, where was the need for Article 239 which on this view with its various clauses will be rendered otiose. And law presumes against superfluity. As such this view too one finds difficult to buy. Clearly, a basic feature to come under the lee of this doctrine which the Supreme Court as guardian of the Constitution is there to uphold, has to be too basic, tampering of which by reason of not being perceived kosher sends shock waves strong enough to arouse discerning sensitized sections of society to rise in non-acceptance. Simply put, change must be such which flies in the face of the grundnorm doing a kind of turnaround and in consequence ends up in remoulding the very template which was used and is intended to be used as guide for crafting or re-crafting of the Constitution. That is to say not every modification, however material, as long as it steers clear of societys edeas recues on political existence is liable to be shot down as unconstitutional.
Let us make an attempt to discover the rationale behind the genesis of the above doctrine to comprehend true dimensions of its implications:
Constitution in a limited sense is not adventitious, it gradually grows out of a particular social milieu as from a chrysalis containing a value system and entrenched social mores of a community who decide to live on a defined territory in pursuit of happiness, to lay low their fears and fulfil their aspirations. Once this living arrangement evolved and agreed upon among the stakeholders is formalized into a Constitution, its progenitor, the dominant value system, out of which it came out, just the same from that moment walks in lockstep with it so to speak as its double, an alter ego. It remains amorphic and invisible yet no less real keeping constant watch against any attempt at its defilement. Thus the document of Constitution provides only a manifest cover to the real thing, communitys ideal or the world-view (Weltan Schauung), as does rind to the kernel. If the rind (shell) is manipulated without hurting the kernel it is all fine and permissible. Indeed often desirable if unavoidable to access the kernel. On the other hand if by tampering kernal itself is damaged or comes under threat such exercise will be beyond a parliaments routine license to amend. As with most organisms, a Constitution cannot be presumed to visualize its own extinction. Therefore the power to amend cannot be deemed as unlimited but only to the extent it promotes its health and makes it more efficient to survive longer to better serve changing societal needs, just as in submitting to a surgeons knife for an invasive procedure a patient cannot be presumed to have given him the license to kill but only a consent to unavoidable hazards of the procedure. Amending a Constitution thus is essentially a corrective surgery with obvious limited scope; not a surrogacy to bring forth a new foetus.
No express constitutional provision, undoubtedly, delineates the above indicated parameters but this is a necessarily implied circumscription inbuilt in the very purpose for which constitution come into existence: to facilitate a people to live their dreams to graduate to realizing their cherished world-view. This kind of consubstantiality existing between a Constitution and the antecedent fluid mass of values which had crystallized into the former in the first place remains one constant to ensure that the spirit of the Constitution is not violated by the periodic chops and changes in the body of the constitution made necessary to keep pace with moving times.
If that value system (or ethical precepts) endures in pristine status all the parliament has the authority to do is to amend with a view to flesh out the spirit of the Constitution to advance its objects which remain either hidden or misunderstood for want of adequate expression. Beyond that it is a no-go area for the ordinary legislative Assembly which without mandate cannot turn itself into a Constituent Assembly. Amending a constitution is not same thing as writing a new Constitution. This distinction must not be blurred. And Article 239 giving immunity to such amending power against judicial scrutiny must be read in this context.
If conversely a change of extraordinary importance in social climate occurs creating a new ethos manifested in espousal of new beliefs and values embodying the spirit of the Age (Zietgiest) and pushing for recognition this would be a subject for a new Social Contract. Such contract can only be undertaken by all the stakeholders indirectly through a Constituent Assembly or directly through a referendum.
As for claiming carte blanch for the parliament because it represented a whole people as against the Supreme Court consisting of 17 odd-Judges, I am afraid, the argument is specious among other things missing the point that the Judges sitting on the ultimate Court as indeed any other State functionaries including a lowly clerk nominated to their offices by legitimate exercise of State Power by the designated-authority shall be as much deemed representing the will and authority of the whole people whence in the last analysis they indirectly derive their commission to officiate supported by States force majeur. Only difference if any being in the circuitous route it takes. Moreover, as questioned by an eminent lawyer if the parliament by the sole reason of being representative of people has the authority to overarch everything as final arbiter, then why by the same token ordinary laws passed by the self-same parliament with somewhat, lesser votes are not immune from judicial review?
That an Assembly chosen for ordinary law-making cannot be a Constituent Assembly was sufficiently illustrated by the Indian Independence Act, 1947 in specifically assigning twin clearly demarcated roles to the Federal Legislature.
Having examined both sides of the proposition, I am of the opinion that in the context of ongoing debate the protagonists of the Supreme Courts authority to strike down the new amendment seem on a weaker wicket in that none of the ingredients of the new method including bipartisan parliamentary oversight for appointment of Judges really cuts a swathe through Judges bailiwick calculated to compromise independence of judiciary threatening basic structure of the Constitution. In any case mechanism of appointments essentially belongs to the executive domain and little to do with post-appointment judicial functioning as such. Therefore assigning some secondary role to a nations parliament is not a monstrous innovation unheard of in the rest of the civilized world. After all courts do not claim a distinct sovereignty. Even otherwise taking a holistic view, dominant element in the Judicial Commission where the nominations are to be effectively finalized being the sitting Chief Justice aided by his senior associates, it seems somewhat pernickety to make issue of an inconsequential provision which in any case in practical terms I see destined to remain dead as a doornail, and the Honble Judicial Commission having the last laugh.
Justice (R) Muzaffar H. Malik
Former Chief Judge Northern Area
http://muzaffar-malik.blogspot.com/
