Former Justice, Allahabad High Court

The recent Supreme Court judgement declaring that Parliament is not competent to take away or abridge the Fundamental Rights by means of a constitutional amendment gives added importance and a new stature to these rights. For, whereas other parts of the Constitution can be amended by Parliament by the procedure prescribed by the Constitution itself, the Fundamental Rights are immune from such changes. The idea apparently is that when sovereign people of India framed the Constitution, they delegated various powers to various organs of Government–the executive, legislature and the judiciary. But there was a certain part of their sovereignty which the people reserved for themselves, and this part was their Fundamental Rights. And if the sovereign in their wisdom refused to surrender their Fundamental Rights, how can Parliament, which is but a creation of the Constitution, venture to abridge or take away those rights? The right, thus, acquires a status above the Constitution, above Parliament and above the Government. Together with these rights go the provisions for their enforcement. In fact the right to move the appropriate court for the enforcement of these rights is itself fundamental right and hence is sacrosanct. Procedure, thus, and not only the substance of the rights, is important, and if procedure is vital and sacrosanct, the role of the judiciary becomes vital and sacrosanct, Mr. Justice William O. Douglas of the Supreme Court of the United States of America, succinctly put it thus: “The vitality of civil rights depends as much on respect for procedure as it does in recognition of substantive rights. Legal history shows, I think, that man’s struggle to be free is in large degree a struggle to be free of oppressive procedures–the right to be free from torture, The right to know the charge and have a fair opportunity to defend, the right to have a system of laws that is not a pitfall for the innocent.”

I could not agree more with Justice Douglas, for I cannot conceive of any emergent situation in which the liberty of the individual must be fettered to an extent that the proper procedure has to be discarded. It is true that the powers of the Executive and the Legislature are augmented during a period of ‘Emergency’ and the Constitution provides that the Executive and the Legislature in the interests of the security of the State may cross the frontiers and occupy some judicial territory and may even administer it till the ‘Emergency’ continues and ask the Judiciary to restrain its hands and turn away its face. But in a Democratic State–unless the civil law is completely suspended and Martial Law takes its place–there is no moment (whatever the ‘Emergency’ may be) when the Judiciary cedes any of its own territory to the Executive or the Legislature in such a manner that it loses its right to inspect it if not to reclaim or re-occupy it. Its light is eclipsed but not extinguished and if necessary it can remove the black curtain that covers its rays. Its jurisdiction is never ousted from its own sphere though voluntarily, by a self-imposed restraint, it may not claim jurisdiction. The basic conception is that the structure of democracy is based on three pillars and they must be of equal size if the roof is not to topple down. You cannot knock out or cut to a shorter size anyone of these pillars, for this is bound to endanger the whole structure.

If the ‘Emergency’ is of such a character that the security of the State demands the establishment of Martial law then all the three branches of Government go together and none of them gets an advantage over the other. But so long as the civil power remains in control the supremacy of the Judiciary in its own sphere cannot be restricted and there is nothing to stop it from asserting itself if it wants to do so. It is the option of the Judiciary to see or to close its eyes, to hear or to plug its ears and to speak or to seal its lips. As far as I could read the provisions of the Constitution and the Defence of India Act. 1962, they certainly do not bar the Courts of Law from deciding whether this Act is a void piece of legislation or not and once the Act is found to be void, none of its provisions which seek to fetter the hands of Courts to give relief to those who have been denied their Fundmental Rights can be enforced for they are part of a dead legislation.

There is another approach to the question which leads to the same conclusion. The juristic conception of the functions and duties of a Judiciary are not merely to adjudicate and interpret the words of the Statute. The Judiciary is also the defender of the Constitution and has to function as a bulwark of the personal freedom against the encroachments made either by the Executive or the Legislature. The Fundamental Rights embodied in the Constitution cannot be permitted to be restricted except for the most compelling reasons in a grave ‘Emergency’. Even in an ‘Emergency’ though it may not be open to a person deprived of his liberty to advance the plea that he is being denied his Fundamental Rights but his inability to do so cannot be advanced as a licence or justification for the Legislature to enact a law which does not give the citizen even the minimum human safeguards but hands him over completely to the Executive authority without a chance of even knowing the charge or opening his lips if only to say that a mistake has been committed.

Again it does not bar the Supreme Court or the High Court to exercise its own inherent and constitutional right to make the validity of the Act a justiciable issue and pronounce its opinion even if it hesitates to give relief. No act of legislature can compel it to exercise this restraint. The reason is that the Court has also to act as a symbol of the ideal of Liberty under the law. The esteem, the affection which the people of a democratic state give to the Judiciary, the faith which they have in its independence and detachment may be endangered to a certain extent if the people find that even in the face of the gravest injustice the Judiciary has been made powerless to give them relief. The Judiciary must stand on the highest pedestal and should not step down from it. It is necessary that the people in a democratic state should look upon the Courts as the last Haven of Refuge against all winds of injustice for otherwise the weak and the outnumbered will never be able to resist the strong oppressors and the rule of law will give place to the rule of might. The written words of the Statute should, therefore, be interpreted in the framework of the ‘Unwritten Law’ which consists of those principles which give a meaning to the democratic state.

Whenever the question of interpreting the statutes comes up, there are always two approaches and the Judges are frequently divided in their opinions because of this difference of approach. These two approaches may be called the Conservative approach and the Liberal approach. Even today in the Supreme Court of America this division is well-marked and out of the nine judges, four are in the Liberal group, three are in the Conservative group and two may be called non-aligned. That is the reason why in many of the major decisions of policy given by that Court recently there is a deviation of 5 to 4 or 6 to 3 with the Liberal group mostly giving the majority decision. I will now try to give these two approaches to the best of my ability.

The conservative approach is that the Courts should interpret the enactments as an expression of the will of the people, and therefore, it should not be opposed even if it is glaringly unjust. It is of the opinion that any opposition to the written words of the Statute amounts to usurping the functions of the Legislature and to try to interpret it in the background of certain principles and then lay down policies is an encroachment on the legislative sphere and in effect amounts to new legislation. It reconciles itself to this position by holding (in the words of Justice Frankfurter, who may be said to be the spokesman of the Conservative group in the Supreme Court of America): “There is not under our Constitution a judicial remedy for every political mischief and relief for victims of unfair apportionment must come through an aroused popular conscience that sears the conscience of the People’s Representatives.”

It, therefore, advocates the doctrine of ‘Judicial restraint’, for, according to this group, Courts should not enter the ‘political thicket’. It may be pertinent to observe here that Justice Frankfurter seems to have much greater faith in the conscience of the People’s Representatives than many of us in this country. It should also be remembered that when there is a scramble for power between various political groups, the group in power can safely victimise its political rivals in the name of ‘Emergency’ and that too for a long time. In such a situation a citizen does not lose his liberty and accidentally through misfortune but it becomes part of a plan. Let me make myself clear. I am not saying, that such a thing is happening. I am only saying that if the conservative view prevails such a thing is possible and as a citizen of this country I would feel very unhappy if on an interpretation of the law of the land it is held that the Legislature has been given this absolute power and the Judiciary has no other option but to console the sufferers that you can only secure relief through political upheavel.

I will now give the Liberal view. The base for this view is to be found in the words of Justice Hugo Black in an a appeal filed by the United States Communist Party against their compulsory registration under the Subversive Activities Control Act. He observed: “The framers of the Bill of Rights knew that free speech might be the friend of change and revolution. But they also knew that it is always the deadliest enemy of tyranny. They believed that the ultimate happiness and security of a nation lies in its ability to explore, to change, to grow and ceaselessly to adapt itself to new knowledge born of enquiry free from any kind of governmental control over the mind and spirit of man. Our constitutional freedoms must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.”

In 1958 the Supreme Court of America was called upon to review a Statute which gave the Congress the power to deprive a native-born American of citizenship for voting in a foreign election. Justice Frankfurter delivering the majority judgment justified the measure on the ground that there was a ‘Rational Nexus’ between the Statute and the foreign policy of the Government. The minority judgment was delivered by Justice Hugo Black and he observed: “The notion that citizenship can be snatched away whenever such deprivation bears some ‘Rational Nexus’ to the implementation of power granted to Congress by the Constitution is a dangerous and frightening proposition.”

The Liberal view, therefore, holds the Fundamental Rights to be of paramount importance and does not hesitate to lay down principles of interpretation to protect these rights. It is a matter for gratification that the Supreme Court of India has adhered to the Liberal view.