It would appear that all political parties and their leaders have developed a new image of, and affinity for, the Constitution of India. This was evident in the recent session of Parliament, which was preceded by a hard-fought and hard-won election for the 18th Lok Sabha. The oath-taking of many included the additional utterance of “Jai Samvidhan” — the chant also reverberated in many public gatherings — although the oath itself is a pledge to uphold the Constitution and the sovereignty and integrity of India.
Article 99 prescribes that every member of either House of Parliament should take an oath or affirmation according to the Third Schedule that she “shall bear true faith and allegiance to the Constitution of India as established by law”. That phrase is itself puzzling because the Constitution determines the validity of laws passed by Parliament, not the other way around. And, despite some early hesitations, it has now been accepted by all that a constitutional amendment is also such a law, whose validity is subject to constitutional judicial review.
The cynic and the realist may maintain that the newly found affection and reverence for the Constitution is, at best, a novel way of heightening the democratic legitimation for competitive political performance. They may argue that it has little bearing on adherence to constitutional duties (Part IV-A) or the Directive Principles of State Policy (Part IV), or even the rights of liberty and equality of all (Part III).
The extraordinary fact, however, remains that the voters have deftly developed the idea of constitutionalism as a shield and sword for their own larger freedom against the political futures they apprehend. Not being a political scientist or a psephologist is a disability, but I have always viewed election results in terms of the changing relationship between the “oathed” and “un-oathed” citizens. The paradoxes of democracy lie in how, and why, the oathed citizens continue to constitute the constitutional elites and how the “people”, in whose name all political power is exercised, remain “masses” of the “weaker sections of society”.
The other oath in the Third Schedule provides an important part of the answer. The oath of office for Justices of the Supreme Court and the High Courts of India includes the following: “I will duly and faithfully and to the best of my ability, knowledge and judgement perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.”
The first thing to note is the phrase “perform”. The law as performance, a public demonstration, has yet to be fully studied in India. The second provides a succinct working definition of independence of the judiciary, as security from threats emanating from within (incumbent and superannuated justices, litigants and lawyers), and outside (from the state and the economy).
Does it constitute a “judicial overreach” when justices act in light of their oath? Note also that they are the only class of constitutional karamcharis who are not to act on their belief and opinions but on their “knowledge and judgement”. Knowledge here refers not to the folklore of law but to the institutional memory of the foundational values of courtcraft and justicing. And “judgement” connotes fidelity to the core principles of traditions of interpretation, in which most precedents function as steadying points of law. However, it allows reasoned justifications to depart from the precedents of manifest injustice.
Knowledge and judgement of the core principles of law provide the wherewithal for constitutional reverence and renaissance, as was memorably propounded on July 4, 2018 by the 45th Chief Justice of India, Dipak Misra (with Justices A K Sikri and A M Khanwilkar): “The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realisation of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals.”
The judicial oath is thus a standing invitation to innovate judicial interpretation of the rule of law and to renovate the practices of good governance in accordance with reasoned judgment about judicial duties and remedial action. The repair, reform, and renaissance — inherent to judicial duties — is thus placed at the service of judicial oath prescribed by the Constitution itself. The judicial oath is fully at work in and since the Kesavananda Bharati decision — the end of whose Golden Jubilee (on April 23, 2024) was proudly celebrated by many law schools and the grateful people of India. Rather than judicial overreach, the problem troubling us is that of constitutional underreach.
The Kesavananda Bharati decision and its progeny prescribed that, first, constitutional powers are plenary powers, supreme within their decisional domains, and second, that all powers are simultaneously limited and accountable. There are no sovereign powers, but only supreme constitutional powers provided within constitutional limits — including judicial power and the process of constitutional judicial review. And, contrary to political propaganda, most amendments since Kesavananda Bharati have been sustained — only a minuscule number have been held contrary to the Basic Structure doctrine. Further, the Basic Structure comprises two aspects: First, forensic freedoms (free space of argumentation in an open court — the independence of the Bar), and second, the independence of the judiciary. To take these away is to abolish altogether the idea of the Constitution and that of responsible sovereignty; in short, the very idea of legitimate authority.
Surely, the Prime Minister was right to stress in the Rajya Sabha that the Constitution is not a miscellany of dry provisions and that we should also look at its underlying spirit. That is precisely what Kesavananda Bharati and its normative progeny decided. The defence of the Constitution needs to now be made more specific: No matter how the Constitution may be amended in the future, with an all-party consensus, its Basic Structure and foundational principles should never be allowed to be eclipsed. Indian people have actively, and affirmatively, responded to this call but the question is whether constitutional elites will do so. Must the answer, as Bob Dylan sang in 1962, forever be “blowin’ in the wind”?
The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi
