Constitution is the tangible embodiment of constitutionalism. Constitution is body and constitutionalism is the soul thereof. Defining and limiting the power of government and safeguarding the natural rights of the governed are the gist of constitutionalism. A political system is constitutional as long as it contain institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those in the minority. Constitutionalism is a fruit of long and desperate struggle of people for protection of their cherished rights. Contemporary Constitutionalism has its roots in the Glorious Revolution of 1688.
In 1689, King James II and absolutism was finally defeated in the “Glorious Revolution.” After sixty years of conflict, constitutionalism finally established itself both in theory and in political reality in Britain. The Glorious Revolution was the culmination of the clash between the monarch and Parliament in England. A series of armed conflicts and political machinations between Parliamentarians (“Roundheads”) and Royalists (“Cavaliers”) ended in, among other things, the prosecution of King Charles I. During this fierce battle, political thinkers joined the ranks of both side. John Locke and Thomas Hobbes were the intellectual commanders of Roundheads and Cavaliers respectively.
Both sides desperately tried to justify their positions with same philosophical hypothesis called social contract; but with contradictory contents. Liberalism and constitutionalism germinated from the Locke’s version of social contract. In Lockean concept, man is naturally virtuous and cooperative. They had, in pre-political state of nature, natural rights of life, liberty and property. So, in state of nature men lived peacefully. To further strengthen the cooperation, people agreed to set up a state. In consideration to the obedience to state, people got unalienable rights of life, liberty and property. This quid pro quo is the gist of the Lockean social contract. The theory of social contract has no historical backing, but it has immense relevance in political philosophy ever.
American Declaration of Independence (1776) gave practical shape to Lockean social contract- “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”
The Bill of Rights, the first 10 Amendments to the American Constitution, elaborated the right to life, liberty and pursuit of happiness and guaranteed civil rights and liberties to the individual—like freedom of speech, press, and religion. It set rules for due process of law and reserves all powers not delegated to the Federal Government to the people. Thus the Lockean social contract was substantially converted into praxis in USA. To contain the intrinsic totalitarian tendencies of state, American constitution implanted federalism, bicameralism and separation of powers and checks and balances in government.
Indian constitution, as any constitution in true sense, is rooted in constitutionalism. Constitution of India is a Lockean social contract between We the People of India and Republic of India. In return to the obedience to the Republic, the people of India are reciprocated with some unalienable rights. The Judiciary, mainly the Supreme Court, is envisaged as an independent and impartial adjudicator for solving disputes that may arise out of ‘the social contract’ between the people and the Republic. It is the primary duty of the Supreme Court to maintain its impartiality and independence and any failure thereto, would be a dereliction of its duty.
“The seat of justice is the seat of God’’-said Mahavir Tyagi, prominent freedom fighter and parliamentarian, in the Constituent Assembly. Our founding fathers framed the Fundamental Rights and the judiciary in a romantic rhythm. “The members of the Constituent Assembly brought to the framing of the judicial provisions of the Constitution an idealism equalled only by that shown towards the Fundamental Rights. Indeed, the Judiciary was seen as an extension of the Rights, for it was the courts that would give the Rights force’’-says Granville Austin in his work The Indian Constitution: Cornerstone of a Nation.
The Supreme Court has been envisaged by the founding fathers as the custodian and final interpreter of the Constitution and Fundamental Rights, the guardian angel of minority rights and the lighthouse of social revolution. The Supreme Court is armed with the mighty weapon of Judicial Review. Judicial review is the authority of the court to pronounce the constitutional validity of legislation passed by the legislature or a policy or decision taken the executive. The Constitution has made many safeguards for maintaining the independence and impartiality of the judiciary including the security of tenure and contempt of court jurisdiction.
It is the audacity and impartiality of the judges that will infuse vitality to the parchments of the Constitution. If the judges are timid and sycophants to the powers-that-be, the constitutional scheme of independent and impartial judiciary would be a pie in the sky. The Court has neither purse nor sword; its sole capital is its good will the trust of people. The ruling elite will always hell-bent to demoralise the court. Eternal vigilance of the Court is the price of its independence. The Roman poet Juvenal, posited the famous question “Sed quis custodiet ipsos custodes?” (Who will guard the guards themselves?). Lord Denning answered, “Someone must be trusted. Let it be the judges” .The Supreme Court should be the guard who need no guard to guard it.
But we are cursed to witness the erosion of impartiality and independence of Supreme Court. Recently Supreme Court judge Arun Mishra while delivering the vote of thanks at the inaugural session of the International Judicial Conference 2020, praised Prime Minister Narendra Modi publically as a “versatile genius” and said that Modi is the one who “thinks globally and acts locally”. Justice Arun Mishra is among the five most senior judges of the apex court.
As the Supreme Court is presently examining the constitutionality of the controversial actions of Prime Minister Modi regarding the revocation of Article 370 and the Citizenship (Amendment) Act 2019, it is highly inopportune for a senior judge of the Court to publically air his adulation for the Prime Minster. It raises valid apprehensions about the impartiality of the Court. The judge must have minded the oft-quoted aphorism of Lord Hewart-“Not only must Justice be done; it must also be seen to be done.” The mid-night marching order dictated to Justice Muralidhar of the Delhi High Court in the wake of Delhi riots is another disturbing episode of eroding judicial independence.
Chief Justice Bobde’s oral statement, while considering the Delhi pogrom case, that the courts were not equipped to handle palpable pressure and the Courts could not prevent anything is another shock to the common man who considers the Court as the last refuge for protection of his life, liberty and property. The statement of Chief Justice is an abdication of power and a dereliction of duty.
The Supreme Court of India, in C. Ravichandran Iyer vs Justice A.M. Bhattacharjee & Ors (1995) observed: “Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process.’’ Sadly, by indulging in sycophancy and by compromising the duty to protect the life, liberty and property of the citizenry, the Court has spoiled the public trust bestowed upon it. Such laxity of the Court would render the Constitution, sacrosanct social contract, a nudum pactum.
There is story on Mullah Nasreddin Hodja who is considered a populist philosopher, Sufi and wise man, remembered for his funny stories and anecdotes. Once Mullah was walking in the street and a rich man came across Mullah. The rich man without any provocation or reason slapped Mullah. Aggrieved and saddened Mullah petitioned before the Magistrate of the city. Magistrate was close to the accused, the rich man. Magistrate granted a meagre one Dinar as compensation to Mullah and allowed two days time to pay it. A more aggrieved Mullah spared no time to blow a slap on the cheek of Magistrate. Then Mallah respectfully submitted: “Your honour, if the price of one slap is one Dinar, you take it from the accused as I am too busy to wait for it!” Indeed, there is a precious moral from Mullah for all judges who act without integrity!
Faisal CK is an independent researcher with graduation in law and post-graduation in political science. He writes on Philosophy, Law, and Diplomacy.