SN Misra
The decision of the Supreme Court to order a floor test in the Maharashtra Assembly could not have come on a more apt day; it was the 70th birthday of the Constitution. Justice Marshall had observed: “A constitution is framed for ages to come and it is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always be tranquil.” Indeed, the course of the Indian constitution has been far from tranquil and has witnessed 105 amendments so far. The Kesavananda Bharati judgement (1973) limited constitutional amendments to outside the boundaries of the ‘basic structure’ and retained the power of judicial review.
When the Parliament tried again to amend Article 368 by taking away the power of judicial review and making the Parliament’s will supreme, the Supreme Court in the Minerva Mills case (1980) ruled that the Parliament’s power to amend the constitution is limited.
Federalism has been identified as a cornerstone of the Indian constitution. However, blatant misuse of Article 356 by the Governors as agents of the Centre, has deeply dented Centre-state relationship.
The Bommai judgement (1994) marked a watershed moment in the relationship between the Parliament and the judiciary and reaffirmed the Minerva Mills judgement. In a sense it ensured that arbitrary dismissal of state governments is provided. In the recent cases, involving Government of Uttarakhand and Arunachal Pradesh, the “floor tests” prescribed by the SR Bommai judgement were put into effect through court direction. In case of Maharashtra also, political sanity was brought in by the Supreme Court by ordering a floor test.
Sociologist and writer Andre Beteille wrote: “A constitution indicates the direction in which we are to move, but the social structure will decide how far we are able to move and at what pace.” The founding fathers of our constitution were of the view that reservation of SC/ST will remain a transitional requirement. It has sadly persisted and the politics of caste has now gone beyond OBC to reservation for the upper caste on the basis of economic criteria.
The Constitutional scholar, Samuel Frier observes that the American Revolution was perched on five inventions: A constitutional assembly to frame a constitution; Bill of rights; a court of law to check breaches; separation of powers and federalism. As we open the pages of the Indian Constitution, with all its warts and moles, we are struck by its resemblance to the American Revolution.
After 50 years of the working of the constitution, the Atal Bihari Vajpayee government had appointed a constitutional review panel in 2002 to suggest measures to improve it. Some of the important changes the panel had suggested are: To include freedom of press as a fundamental right and right to compensation if the rights to life, liberty or privacy are illegally deprived. It also suggested that the governor’s report for invoking Article 356(1) (constitutional emergency) should be a speaking document containing a precise and clear statement of all material facts and grounds, on the basis of which the President may satisfy itself, as to the existence or otherwise of the breakdown in constitutional machinery. It also suggested the establishment of a National Judicial Commission to appoint judges to the Supreme Court.
These recommendations should be put in place on an urgent basis, going by the experience of ‘horse trading’ that takes place for assuming political power in states, and also to remove the impression that the existing collegium system for selecting judges to the high court and the Supreme Court is opaque.
The selection of governors and their dubious role as agents of the party in power need review in the light of the Sarkaria Commission report of 1983. The immortality of a constitution is guaranteed by its structural and ethical underpinning. Besides, how the Supreme Court balances the two wheels of the chariot that is the Constitution — individual freedom (Part-III) with distributive justice (Part-IV) — will remain a vexatious challenge.
The writer teaches constitutional law.