No more dark spaces

What has the latest judgment achieved? The importance of this judgment will be diminished if we see it only as an attempt by the Supreme Court to assert its supremacy. There is, as has been pointed out, nothing new in this assertion. Ever since Keshavananda Bharati, the Supreme Court has asserted that power, and Waman Rao had reiterated that amendments to the Ninth Schedule were “open to challenge” on the ground that they damage the basic and essential features of the Constitution. The issue after Waman Rao was over an important technical obscurity: whether an Act or Regulation which has been found by the Supreme Court to violate Articles 14, 19 or 21 could be included in the Ninth Schedule or whether it is only a constitutional amendment amending the Ninth Schedule which destroys the basic structure that can be struck down. The court has emphatically reiterated that no law is immune from judicial scrutiny.

But the judgment is far-reaching in another respect. The ‘basic structure’ doctrine had given the courts the judicial lever to scrutinise constitutional amendments. But, as Raju Ramchandran forcefully point out, the courts often read the ‘basic structure’ doctrine, like an indiscriminate list, covering all manner of things from rights, to values, to institutional forms. The court never fully articulated the boundaries of the doctrine, or even explained why elements of the basic structure were indeed basic. One way of reading the present judgment is a tentative attempt to articulate answers to these questions. The court seems to be moving to something like the following position. The golden triangle of articles 14, 19 and 21 (dealing with equality, freedom and life) and the principles underlying them define the core of the Constitution, which even any amendment put in the 9th Schedule cannot violate.

The court is not simply asserting its authority over constitutional interpretation. It is doing something more profound: setting the parameters of public reason. Shorn of legalese, the core question is this. Should a liberal democracy like ours permit legislation that abrogates any of these articles? Any legislation that violates norms of equality, unjustifiably abridges freedoms and makes the right to life ridiculous cannot be a good faith exercise in public reason. These rights are not trumps, but they are both constitutive of and instrumental to creating a tolerant and just society.

It is too facile an interpretation to see recent judgments as an attempt to assert judicial supremacy. From the Buta Singh case to this one, the simple question the court is asking is this: justification of legislation or action has to be an exercise in public reason. This has a specific meaning, namely that the reasons given can not only not be arbitrary, but they should not violate the citizen’s standing as free and equal persons, essentially what the golden triangle protects. What the court is asserting is not its authority, but reiterating the standing of citizens as free and equal persons. This standing cannot be protected if the legislature has power to use the numerology of the Constitution to shield its actions from constitutional scrutiny. Although the court itself does not do it, arguably the golden triangle can also now set parameters on the ‘basic structure’ doctrine. It will be curious if, in coming years, another wheel turned full circle, and we travel in a different way, the journey back to Golak Nath’s emphasis on rights as the core value to be protected.

This will not put to rest controversies over judicial activism. Clearly in directions to the executive the judiciary is sometimes overstepping. And what exactly the fallout will be on specific cases from reservation to land acquisition remains to be seen. How the judiciary will interpret Articles 14, 19 and 21 remains an open question. Some critics of this judgment argue that the court is making the Ninth Schedule irrelevant. Now every legislation can be scrutinised on grounds of its compatibility with Articles 14, 19 and 21. But the answer to these critics is two-fold. There is something known as constitutional learning. Everyone knows the Ninth Schedule was an anomaly. It made the Indian Constitution, in Gajendragadkar’s funny formulation, the only constitution in the world containing a provision for providing protection against itself. If the force of the Ninth Schedule is undermined, even if it is not formally abrogated, all the better. But more substantively, can anyone seriously argue that the tussle over the formal allocation of powers between the legislature and judiciary can be allowed to trump the core question: what constitutional values should place limits on the exercise of power, be it the power of the legislature or the court?

The writer is president, Centre for Policy Research, New Delhi