Justice as Equity and the ‘Mercy of the Legislature’: The Institutional Sovereignty of Parliament, and the Subordination of the Judiciary

The legislative sovereignty of the category of justice as equity, however, did not mean that the category of freedom was completely absent from the Indian Constitution, which was, after all the constitution of a democratic polity.

The notion of freedom operates in the Constitution in the form of fundamen­tal rights. The role of fundamental rights is the protection of the individual from encroachment by the state, which John Elster considers the most critical function of any constitution.^[1297] In the Indian Constitution fundamental rights are divided into seven parts: The Right to Equality, the Right to Freedom, the Right against Exploitation, the Right to Freedom of Religion, Cultural and Education Rights, the Right to Property, and the Right to Constitutional Remedies.

The sovereignty of the concept of justice as equity in the Indian Constitution is invested in its authority to override fundamental rights in the name of exception. What separates the Indian Constitution from most other modern constitutions is the logic of exception embedded in it: even as it lays out rules regulating the inter­relationship between the different branches of the Government and institutes the fundamental rights of citizens, at the same time the Constitution makes way for exceptions to the otherwise universally applicable rules. These exceptional situ­ations, however, include not just periods of national emergencies brought about by external aggression and war or domestic disorder, but also everyday situa­tions when the Parliament could decide that the suspension of some essential and universal constitutional provision was necessary in the interests of bringing about a more equitable society.^[1298] Thus, unlike national emergency provisions in other constitutions, which can only be applied in exceptional situations, in the Indian Constitution the logic of exception is not dependent on external emergencies but in fact is written into the Constitution as a permanent tool that can be deployed in any situation by the Parliament in the name of equity.

To make sure that fundamental rights were not interpreted as absolute and as such binding on the state, the Constitution-framers invented another technique of adding qualifications to each right. Attached provisos circumscribed individual rights to such an extent that one of the members of the Constituent Assembly, Somnath Lahiri, argued in a memorable phrase that the rights had been framed ‘from the point of view of a police constable’.^[1299]

As Austin, the constitutional scholar, points out, this ‘particular aspect of personal freedom was whittled down until on paper at least it was non-existent....in the end they (the Constituent Assembly members) pinned their faith upon the mercy of the legislature and the good character of their leaders’^[1300] If the ‘faith upon the mercy of the legislature and the good characters of their leaders' became the assumed guarantors of these rights, then that was because within the discourse of justice as equity rights as such were seen as privileges granted by the state as a gesture of its compassion toward the people; rights were a sign of the ‘duty’ and ‘self-restraint’ of the state.

One of the consequences of the sovereignty of the category of justice as equity and the subordination of the category of freedom was that the power and authority of the Supreme Court was undermined. John Elster has argued that the suprem­acy of the judiciary over the legislature and the executive, and the practice of due process are the institutional means of guaranteeing the protection of individual rights from electoral majorities and powerful factions that might infringe on these rights.^[1301] By giving the courts the power to judge in a case where an individual’s rights may have been infringed upon by the legislature or the executive, the right to due process safeguards fundamental rights from the excesses of the state; in the absence of the right to due process, one would have nowhere to turn to for help against the state.

The Indian Constitution-framers undermined the Supreme Court’s author­ity by rejecting the ‘due process’ clause as a fundamental procedural element in the Constitution, in spite of overwhelming public demand for it.^[1302] Arguing that ‘to fetter the discretion of the Legislature would lead to anarchy’, Govind Ballabh Pant, Benegal Narsing Rau, Jawaharlal Nehru, and others contended that in the interests of law and order, the prevention of violence and the imperatives of social justice, the due process clause needed to be dispensed with, and Parliament given the absolute power to override the rights of the individual.^[1303] In words reminiscent of the British colonial administration, Rau warned the Constituent Assembly that ‘The Courts, manned by an irremovable Judiciary not so sensitive to public needs in the social or economic sphere as the representatives of a periodically elected legislature, will, in effect, have a veto on legislation exercisable at any time’.^[1304] Dr Bhimrao Ramji Ambedkar acknowledged that ‘no part of our draft constitution was so violently criticized as Art 15’ that rejected due process.^[1305]

Even with a written constitution, the Supreme Court’s absolute right to review parliamentary legislation in terms of their constitutionality - as it is in the United States - was drastically limited, if not altogether removed by the framers of the Indian Constitution. While the Constitution did provide for judicial review in the domain of fundamental rights and the relation between the central and state legislatures, severe restrictions were placed on the nature of review. As the consti­tutional scholar Satyaranjan Purushottam Sathe points out, ‘maximum care was taken to avoid making judicial review censorial of legislative policy as it had been in the United States’.^[1306] Durga Das Basu, the well-known constitutional scholar, pointed out the essential difference between the American Constitution and the Indian Constitution:

While the declarations in the American Bill of Rights are absolute and the power of the State to impose restrictions upon the fundamental rights of the individuals... had to be evolved by the Judiciary, in India, this power has been expressly conferred upon the Legislatures by the Constitution itself in the case of the major fundamental rights.^[1307]

Thus, the Indian Constitution-framers gave the institution of the Parliament the right to take exceptional policy decisions in the name of the overriding category of justice as equity which could, in fact, go against the fundamental provisions of the Constitution itself.^[1308] Moreover, Parliament had the right to amend the funda­mental provisions of the Constitution if the court’s decisions conflicted with its own sense of justice as equity.

The relatively easy process of amendment to the Constitution also reveals that the Congress did not see the Constitution as a permanent sovereign text that would endure through the ages. ‘No Supreme Court and no judiciary, declared Nehru ‘can stand in judgment over the sovereign will of the Parliament, representing the will of the entire community... Ultimately the whole Constitution is a creature of Parliament’.^[1310] By designating the Constitution as ‘a creature of Parliament' what the Congress did in effect was to put the Parliament both above the Supreme Court and the Constitution itself. This understanding effectively abolished any notion of the sovereignty of the Constitution as a unique document that anchored the entire polity, and reduced it to the status of a regular act of legislation. For the text of the Constitution to acquire the aura of sovereignty - and by implication for the Supreme Court to acquire autonomy as its final interpreter - it was essential that the moment of constitution-framing be symbolised as an extraordinary moment, distinct from routine acts of legislation.^[1311]

It is not surprising then that when the Supreme Court did presume to take on the position of the guardian of the Constitution in the post-colonial period, the power of amendment that was in the hands of Parliament was used time and again to defeat it.

The ‘sovereignty’ of Parliament, however, is derivative in nature: it has its origin in the categorical legislative sovereignty of justice as equity. It is this category of justice as equity that constitutes the ‘exceptional’, and the institutional sovereignty of Parliament flows from it. In this sense it is inadequate - while trying to deter­mine the nature of sovereignty in a polity - to simply focus on who decides on the exception, as Schmitt has argued, while ignoring the nature of what constitutes the exception. In the case of the Indian polity, the who - the Parliament - derived its power of making exceptions from the what - the category of justice as equity. The discursive sovereignty of the category of justice as equity is more important in laying bare the nature of sovereignty in India than the institutional sovereignty of the Parliament.

In 1955 Nehru made an observation that reveals in clearest terms both the nature and the origin of the Parliament’s sovereignty: ‘There was an inherent contradiction’, Nehru argued, ‘between Fundamental Rights and the Directive Principles of State Policy’ and ‘it is up to the Parliament to remove the contradic­tion and make fundamental rights subserve the Directive Principles of State Policy’ (author’s emphasis).^[1312] This statement reveals a clear understanding on the part of Nehru of the inherent contradiction between the Directive Principles, anchored in category of justice as equity, and fundamental rights, anchored in freedom. The way to remove the contradiction was by making ‘fundamental rights subserve the directive principles of state policy’ - that is by making freedom ‘subserve’ justice.

Justice as equity, in other words, was the sovereign legislative category and freedom the ‘subservient’ category. The categorical or discursive sovereignty of justice as equity operated in the Constitution through a logic of exception which is invested in the Parliament’s ability to suspend any and all other provisions, privi­leges, and rights based on the notion of freedom, were they to come in the way of justice. The institutional sovereignty of the Parliament over both the Constitution and the Supreme Court, thus, is derivative of the categorical sovereignty of justice as equity. Thus, what legitimised this concentration of power in the Parliament’s hands and justified not making individual rights absolute was that it was the insti­tution of the Parliament - like the British colonial state before it - that would be the primary agent of a new society, where the people themselves were merely passive recipients of the beneficence of the state rather than agents of their own future.

IV.