In a recent book, Constitutional Personae, which is about judges of the US Supreme Court, the author says that ordinary persons are drawn more to a judge who plays a dramatic role than to a judge who applies a prescribed set of laws and precedents. This prompts me to ask, “Do we really want our judges to be heroes?”
The president of India has already expressed himself. He does not. Steeped in the trappings of the Westminster model of governance — with its emphasis on separation of powers — he recently cautioned members of the highest judiciary against indulging in “judicial activism”, that well-worn phrase used in all constitutional cultures about judges who read more into the constitution than what is written.
In the past 60-odd years of its existence, the Supreme Court of India has had, broadly speaking, two types of judges: Those who, in important constitutional matters, defer to the political branch of government, and the rest, who definitely (sometimes defiantly) do not. Justice H.R. Khanna outshone his colleagues — consciously sacrificing his future chief justiceship — when he preferred to deliver his solo dissent in the now-infamous case, ADM Jabalpur vs Shukla (1976), where four other seniormost judges of the highest court upheld the suppression of all personal liberties during the period of the internal Emergency (June 1975 to March 1977). It was Khanna’s eloquent dissent that lifted an otherwise prosaic judge into the Hercules class of heroes. But the president of India need not worry. Judges in the Hercules class are few and far between. They flash onto the legal firmament with the same frequency as Halley’s Comet — once in about 75 years!
In the main, our judges are respectful of the doctrine of separation of powers; but since the concept of judicial review of all action — legislative and executive — is basic to our constitutional scheme, it is only when the separate-but-equal authority (the executive) moves out of step or, as more often happens, does not move at all even when circumstances so demand, that our judges do intervene (as they must) in the interest of “we the people”, for whom the Constitution was framed. When officials, howsoever high, whether at the Centre or in the states (more often in the states) act wrongly or abuse powers given to them by the laws and the Constitution, the judges also intervene.
All such interventions are not adventures in “judicial activism”. And believe me — we have little need of judges in the role of heroes. The minimalist judge (one who is willing to take small steps towards upholding constitutional values) is good enough for this job. This is what our judges are doing, and must continue to do.
In the past, suspending or removing elected governments in the states had been a not-infrequent ploy of governments at the Centre (mainly Congress governments). The “game” is now emulated by the super-majoritarian BJP government, since it assumed office at the Centre nearly two years ago. To “topple” an elected government in the state requires a proclamation, imposing what is euphemistically described as “president’s rule” (in effect, governance by the Central government in that state). Under the Constitution as amended, the head of state is now permitted to send back “advice” tendered to him by the prime minister and his council of ministers — but only once. On its reaffirmation by the cabinet, he becomes constitutionally compelled to act in accordance with that advice.
It was at one time doubted whether judges could review action taken under Article 356 of the Constitution — which is always in the name of the president of India. The doubt was resolved in the Bommai case (1994), where a bench of nine judges (by majority) said: Yes. And that is when the embarrassment started. In the year 2006, the dicta in Bommai was actually acted on — when a Constitution bench of five judges quashed and set aside the presidential proclamation for the dissolution of the Bihar assembly on grounds that it was both ultra vires and unconstitutional.
The finding greatly affected respected former President A.P.J. Abdul Kalam, who had been hurriedly called upon to put his signature to the proclamation imposing “president’s rule” in Bihar when he was on a state visit to Moscow. (He said he regretted it.) After the decision of the Supreme Court in the Bihar dissolution case, Kalam confessed that he almost felt obliged to resign — although the decision to impose “president’s rule” was not his but that of then Prime Minister Manmohan Singh.
Article 356 of our Constitution has been, and is, nearly always misused — in the overwhelming majority of the 126 occasions that it has been invoked since 1950. I believe the time has now come — not a day too soon — to relieve the president of India of the thankless task of putting his signature to a presidential proclamation imposing “president’s rule”. My suggestion is that action under Article 356 should be made to accord with political reality: What should be imposed (if at all — “rarely” says Bommai) is not “president’s rule” but “prime minister’s rule”. It is time to call a spade a spade. A simple constitutional amendment in Article 356 can relieve the head of state of a perennial irritant, and an unnecessary embarrassment.
And as for “heroes”, I suggest we forget about judges. With the simple constitutional amendment suggested, we can still make a hero of India’s president.