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Making of a legislative court(thehidu)

The Supreme Court of India, on November 30, gave an order that the national anthem will have to be played before feature films at cinema halls all over the country, and that those present in these halls are obliged to stand up to show respect. Similar orders on respecting the national anthem have been delivered by two High Courts in recent years. Indeed such an order is not in any way an aberration in the post-Emergency trajectory of the higher judiciary. A few months back, the Madras High Court mandated that Thirukkural be taught in all schools in Tamil Nadu. Currently, in another case, the Supreme Court is considering making yoga compulsory in schools. While patriotism, education and health may all perhaps be desirable goals, what is common here is the court compulsorily prescribing highly specific modes of pursuing these lofty aims. Such judicial decisions have three other common attributes. First, all such cases are in the PIL (public interest litigation) jurisdiction. Second, they rely on Fundamental Duties and/or an expanded notion of Directive Principles, with a barely concealed contempt for Fundamental Rights. Third, the judges do not feel any need to justify their decisions in legal terms.
Invitation to legislate

While PIL was defined by its dilution of locus standi, two new ways of conceptualising standing in PIL were initially envisaged: representative standing and citizen standing. The first would be in a case similar to a class-action suit, except with a non-class member representing the larger group. A petitioner under citizen standing, on the other hand, was to stand for the entire citizenry of India rather than individual victims of injustice. While both categories have been present since the inception of PIL, there has been a definite trend away from representative standing towards citizen standing. A PIL of the kind filed by the petitioner Shyam Narayan Chouksey is of the latter kind and is really an invitation to legislate. In fact, an order of this sort could only be made under the PIL jurisdiction, as it enables any citizen to come to court professing public concern on any issue, asking the court to act upon it. It should also not be surprising that Mr. Chouksey has had repeated success with the same judge over the same issue. The impulse to legislate as well as allegations of soliciting petitioners with their pet issues go back to the hallowed days of PIL under Justice P.N. Bhagwati. Passing far-reaching interim orders without any urgency, like in the anthem case, rather than in reasoned judgments is also unexceptional. Being a frankly legislative court, the Supreme Court does not feel the need to give any reasons, as legal scholar Tarunabh Khaitan has argued. Such are the occupational hazards of PIL.



The order of November 30 declares: “Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible.” The only statutory provisions the order relied on are Fundamental Duties. These Duties are, perhaps not coincidentally, currently in vogue even outside the judiciary. Last week, when November 26 was celebrated as ‘Constitution Day’ for the first time, the exclusive focus of the University Grants Commission (UGC) directive to all universities and colleges for the occasion was to make students and teachers engage in activities propagating the Fundamental Duties.
A radical reshaping

No such Duties, however, existed in the original Constitution adopted on November 26, 1949. These provisions were incorporated by the 42nd amendment to the Constitution during the Emergency. It was passed by a Lok Sabha which had already finished its term of five years. This amendment radically reshaped the Constitution, amending as many as 59 Articles. The legacy of the 42nd amendment was partially undone by later amendments. But it could not be repealed in toto, and much of it remains in the Constitution, most prominent being its insertion of ‘Socialist’ and ‘Secular’ in the Preamble. This is unfortunate as the 42nd amendment should be undone in its entirety for the damage it has done to Indian democracy. To take a less conspicuous example, it froze delimitation of Lok Sabha constituencies, the logic being States with higher population increase ought not to be ‘rewarded’ with more seats. Population control was thus deemed to be a more important principle than ‘one person, one vote.’ As a result, the average Lok Sabha seat in Rajasthan today represents a much larger population than one in Kerala.

The official aims of the 42nd amendment included giving Directive Principles “precedence over those Fundamental Rights that had frustrated the Principles’ implementation.” Indira Gandhi had carried out a campaign for overriding Fundamental Rights with Directive Principles ever since her electoral victory in 1971. Commitment to Directive Principles was precisely what was implied by her infamous call for a ‘committed judiciary’ during this period. Article 31C was inserted in the Constitution in 1971 through which any law declared to be implementing the socialistic directive principles of Articles 39(b) & 39 (c) could no longer be declared invalid even if they violated Articles 14, 19 or 31. This immunity was extended to all Directive Principles by the 42nd amendment in 1976. A similar immunity was to be granted to laws implementing Fundamental Duties, though this was not carried through. This approach then prevalent was pithily criticised by constitutional lawyer H.M. Seervai: “It was an unfounded assumption… that the Directive Principles were to secure social justice and the Fundamental Rights were mere selfish individual rights.”
An enduring legacy

It is important to understand that this is precisely the implicit logic of the national anthem order this week: pesky Fundamental Rights have to be made subservient to the higher ideals of national integration and/or social revolution. This mode of argument, in which alleged Constitutional goals trump Fundamental Rights, has been embraced by the judiciary and is an enduring legacy of Mrs. Gandhi’s populism of the 1970s. The apotheosis of Directive Principles was accepted in the judicial discourse of the post-Emergency period. While the 42nd amendment to Article 31C was struck down in 1980, even this judgment mirrored Mrs. Gandhi’s language in astonishing fashion.

What makes the order on the national anthem so representative of PIL’s orientation is the fact of its open hostility to the Fundamental Rights enshrined in the Constitution. It has long been a popular misconception that PIL emerged as a corrective to the court’s capitulation to violations of civil liberties during the Emergency. In fact, the post-Emergency court has been steadfast in its support of such state lawlessness. In the infamous Habeas Corpus case of 1976, the court had upheld the constitutionality of the draconian Maintenance of Internal Security Act. Far from departing from this dark legacy, the Supreme Court has since repeatedly upheld an entire alphabet soup of repressive statutes from the National Security Act in 1980 to the Armed Forces (Special Powers) Act in 1997. The populist spirit of the Emergency was never departed from by PIL and is entirely in conformity with its history. The underlying sense of judicial purpose in the post-Emergency period was derived not from entitlements drawn from rights, but from the goals of the Constitution. The courts had implicitly accepted the language of legitimation that Mrs. Gandhi’s formulation of ‘committed judiciary’ offered. As Professor Upendra Baxi pointed out in 1980, the court referred to ‘the people’ more frequently in 1977-79 than in 1950-77.

Even the so-called rights revolution of the post-Emergency court has involved an ever-expanding bunch of unnamed rights flowing from Directive Principles being read into Fundamental Rights. The ‘right to life jurisprudence’ under Article 21 has been extrapolated to include all kinds of socio-economic rights. The only right it seems to exclude is the literal mandate of Article 21, a negative right against any deprivation of life or personal liberty by the state in an illegal manner. While this Article became a receptacle for all manners of positive rights, the all-important civil right it was meant to embody no longer gets the respect it is due. Rights are meant to lead to remedies, but the proliferation of rights under Article 21 exemplifies what legal scholar Clark Cunningham called ‘Rights without Remedies’ and ‘Remedies without Rights’, that is, bare enunciation of unnamed rights without any chance of enforceability and its converse, grant of reliefs like state compensation as largesse without fixing responsibility.

The court’s deference to legislative wisdom in the case of Section 377 of the Indian Penal Code, abdicating its classic function of judicial review, contrasts neatly with orders such as the national anthem one, where the court happily legislates. With PIL, the post-Emergency Supreme Court is very rarely a court for judicial review and far more often, the court for judicial populism.

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