Sunday, August 9, 2015

The Military Courts Case V

Nisar, J., concurs with the Chief Justice and disagrees with Saeed, J.’s suggestion that the court has jurisdiction to invalidate a constitutional amendment on “basic structure” grounds.

50 . . . [I]t is clear that the narrow meaning that the basic features doctrine ascribes to the word amend necessarily involves circular reasoning, as is demonstrated by the following:

The word amend as used in the amending article of the Constitution has a narrow and restricted meaning.


Because the power to amend is of a limited nature.


Because the word amend as used in the amending article of the Constitution has a narrow and restricted meaning.

Even if the reasoning is reversed, the result is still circular:

The amending power is of a limited nature.


Because the word amend as used in the amending article of the Constitution has a narrow and restricted meaning.


Because the amending power is of a limited nature.

So what comes first, the narrow and restricted meaning of the word amend or the limited nature of the amending power?

[The opinion goes on to painstakingly analyze Indian decisions, including, fascinatingly, their political context:]

76.  One immediate fallout of the decision in Kesavananda Bharati was that when the Chief Justice of India retired one day after announcement of the judgments, he was not succeeded by the senior most Judge (as had thitherto been the settled practice) but by A. N. Ray, J., who was fourth in seniority. The reason was the three senior most Judges had all been in the majority. Ray, J. had been in the minority, i.e., had held that Parliament had untrammeled power to amend the Constitution. Res ipsa loquitur. All three of the superseded learned Judges resigned and there were widespread protests by bar associations and other legal groups all across India. Mr. Muhammad Hidayatullah, who had earlier served as the 11th Chief Justice of India (February, 1968 to December, 1970) said of the supersession that it ―was an attempt of not creating 'forward looking judges' but the 'judges looking forward' to the plumes of the office of Chief Justice (quoted on the website of the Indian Supreme Court Bar Association: see shtml).

[At ¶¶ 106-110 the opinion addresses two U.S. cases in which the validity of constitutional amendments was at issue, Dillon v. Gloss and Coleman v. Miller.]

185.  It will be convenient to conclude with a summary, in general terms, of the views expressed in this judgment. This summary must of course be read in the light of what has been stated herein above:

a. In India, the Constitution was framed by its founding fathers and therefore has a special place in Indian constitutional thought and development.

b. The fundamental rights as enshrined in the Constitution were for that reason accorded a sanctity that, it was acutely felt, was violated when attempts were subsequently made to abridge or curtail those rights, either through direct changes or by placing laws in the 9th Schedule (itself added to the Constitution by the first amendment). Thus, in an important sense the subsequent constitutional amendments were regarded as a deviation from the ideal situation created by the Constitution. The importance of this historical fact must always be kept in mind.

c. In our Constitution two important points must be made in relation thereto. Firstly, and most regrettably the fundamental rights conferred by the Constitution were stillborn: Article 280 expressly continued, from the commencing day, the earlier imposed emergency. Fundamental rights were not actually enforced till 1986. Furthermore, almost immediately and for reasons well known the Constitution was subjected to undesirable amendments. The examples include such notorious instances as the 5th Amendment, which was supposed to tame the judiciary. This change was made by the same Assembly which framed the Constitution As I have shown, the more recent constitutional amendments have all had a generally positive intent and effect. Thus, unlike the Indian experience, the process of constitutional change through amendments has had a beneficial and useful effect.

d. Secondly, the Constitution on its promulgation was very much a document of its times (the early 1970‘s) when left-wing theories were much in vogue; witness the presence of the Marxist based Article 3. As pointed out earlier Marxism categorically rejects the principle of independence of the judiciary. Thus this is the direction in which the basic structure doctrine will take us. Is this what the Petitioners want?

e. The basic structure doctrine itself is, if I may say so with respect, has ended in becoming (and this was easily foreseeable) a vehicle for judicial aggrandizement of power at the expense of the elected representatives of the people. On the conceptual plane, it is devoid of merit and amounts to little more than a vessel into which the Judges can pour whatever economic, political or social theory as may catch their fancy or whim at any given time. The decisions of the Indian Supreme Court, discussed above, amply demonstrate this sorry state of affairs. What was decided in Kesavananda Bharati continues to perplex, elude and divide jurists and scholars, what to say of lesser mortals. Minerva Mills and the Coelho case, and the explanation of the latter decision in Glanrock Estate, more than amply demonstrate how amorphous and vague the central tenets of the doctrine actually are. The more the Judges indulge in generalities the further the law moves from concreteness and comprehensibility.

f. Another danger of the doctrine is that it can tempt the Court into judicial overreach. This is amply demonstrated by the Indira Nehru Gandhi case and its aftermath including ADM Jabulpur, when the Indian Supreme Court had to ignominiously backtrack in the face of the aroused fury of a powerfully entrenched Prime Minister.

g. In the foregoing, and other, ways one especially damaging effect of the doctrine has been the erosion of the judicial method in India in constitutional matters. The essence of the judicial method, as practiced in common law countries (and certainly in India before the adverse effects of this doctrine assumed dominance), is that legal principles are objectively applied to concrete facts and disputes that arise before the court. Of course, the law continuously develops but it is not at the subjective whims of the judges. The basic structure doctrine on the other hand takes subjectivity to an extreme and elevates it to high constitutional principle. It is expressly a part of the doctrine that no one—not even the Judges—know what is included in its scope until the Judges themselves declare something to be part of the basic structure. None, save the Judges, know, or can know, what the basic featuresof the Indian Constitution are (as part of the prescriptive doctrine as opposed to simply being a descriptive concept). And even the Judges are at a loss to say in one go what those features are; they must grope their way forward on a case by case basis.

h. Constitutions in free societies are made by the people, for themselves and through their chosen representatives. Of course, in an Islamic polity and for a Muslim community, this is subject forever to the undisputed fact that sovereignty over the entire Universe belongs to Allah alone. But, within the parameters of that eternal principle, it is for the chosen representatives and no one else to act in such matters. And, the same necessarily applies to constitutional amendments. Why should that power not be exercisable by such representatives in their collective wisdom, and why should its exercise be at the mercy of the collective wisdom of unelected Judges? The decisions of elected representatives have been wrong and have occasionally brought us close to disaster. Is the record of the judiciary that much better? The elected representatives at least need to have their mandate renewed periodically. What of Judges, who in any polity are the least accountable branch and in Pakistan in particular are, in a quite literal sense, a closed brotherhood?

i. The temptation to read too much into the Objectives Resolution, whether as the Preamble to the Constitution or an operative part thereof by reason of Article 2A, must be strongly resisted. The historical antecedents of the social, political and economic agenda spelt out in the Resolution has already been laid bare. It is in the very nature of constitutions that they must change in ways big and small and whether by way of judicial exposition or in the exercise of the amending power. To artificially bind down a constitution on the basis of a doctrine such as that expounded by the Indian Supreme Court would be a gross disservice to the development of constitutional law.

j. The experience of the (so far) greatest experiment in democracy, and the home of the modern written constitution, i.e., the United States, amply demonstrates the validity of what has been said herein above. The views of Thomas Jefferson, one of the most famous of the American Founding Fathers, have been reproduced. The considered opinions of the Justices of the US Supreme Court have been noted. There is a role and a place for the judiciary in the constitutional firmament and it is without any doubt a crucial and vitally important role and place. However, the Constitution does not end (it certainly did not begin) with the Judges, and the courts would do well to remember that. Every institution and each organ of the State has its own role to play. That realization and acceptance ensures that the constitutional balance is maintained. The Court should not do anything that unbalances the Constitution. It should never assume in its own favor that it is the ultimate arbiter in all constitutional matters. That, ultimately, is what the basic structure doctrine is about. This Court has in the past refused more than once to adopt this theory (or any variant thereof). It ought again to do so.

186.  In the end, I reiterate the point with which I began. Where should the amending power vest: in the hands of an unelected judiciary even though acting in good faith, or the chosen representatives of the people? As I hope is made clear by what has been said above, my answer is: the latter and not the former. Accordingly, I dismiss these petitions.

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