It is Certainty that Governs Rule of Law that establishes Supremacy of the Constitution
20, Jan 2023 | A Legal Researcher
Law, from any viewpoint, is the foundation of certainty, said the Italian jurist Giovanni Carmignani in his work Theory of the Laws of Social Security. This statement powerfully portrays the importance of the rule of law by connecting it to a sense of certainty. Here, we present a case for the upholding Constitutional supremacy as opposed to Parliamentary supremacy, arguing that, in order to maintain certainty in society, and through this equilibrium, the rule of law. Before this is discussed, it is important to understand why there is a necessity to discuss this seemingly well-established principle.
Recently, Vice President, Jagdeep Dhankar, addressing the All India Presiding Officers’ Conference, made vocal remarks on different institutions of Indian democracy.[1] He (in) famously, said “You cannot script in legislature, a judgement of the court. Usi bhaavna mein(similarly) Court cannot legislate. It is as clear as anything else,” and he went on to talk about the Supreme Court’s judgement in the Kesavananda Bharati Case in which the Supreme Court laid out the Basic Structure Doctrine.[2] The Vice President said, about this seminal judgement, “With due respect to the judiciary, I cannot subscribe to this. This house must deliberate. Can this be done? Can Parliament be allowed that its verdict will be subjected to any other authority?”
The Basic Structure doctrine is unequivocal – Parliament’s power to amend the constitution is not supreme since there is a basic structure that runs through the Constitution and Parliament cannot amend that basic structure. Elements like equality before the law, right to life, right to non-discrimination, the republican nature of the government, secularism etc. come under the basic structure. The list is not exhaustive.[3] In 2023, a high constitutional functionary openly challenging this established principle and saying that Parliament is the ‘supreme power yielding authority’ due to its representation of people; and, that ‘they’ (by which we take to mean the existing lot of parliamentarians) to one of the most significant judgements to be ever delivered by the Supreme Court is not just a warning signal towards where we may be headed. Dhankar’s words need to be engaged with.
Before we go further, it is important to present a clarification. This article or its arguments are not an argument to whittle down the powers of Parliament to either, amend the Constitution or to enact laws. That would be not be a fair reading of the Constitution with its fundamental sovereignty lying in the people. The argument here is that the Parliament’s power to amend the Constitution does not extend to amend the basic structure, as underlined in the Kesvananda Bharati case. The exclusion of rich jurisprudence on basic structure, from this article, is deliberate because- quoting the Supreme Court or judiciary to support the argument that it must be the Supreme Court that is allowed to decide the constitutionality of cases on the basis of their standing with the basic structure doctrine- has already been attempted and accomplished multiple times. Moreover, given that the Vice President’s brazen declaration that he does not subscribe to the views of the Supreme court in the Kesavananda Bharati case, this is rather an attempt to engage with his statement irrespective of the rich jurisprudence the Indian judiciary has already produced.
This article is therefore about Society, the Constitution, Parliament and the Indian state rather than only legalities.
Certainty in a Society
Coming back to certainty, how important is certainty in a society? A simple and real life example would be the food security regime in India. Every month, crores of Indians are certain that food grains will be provided to them by the government. What does this certainty of receiving some amount of food grains do to the people? It provides them an opportunity to not fear starvation or dire conditions, gives them the freedom to look for jobs, perform at their workplace and in general, aim for a better quality of life. If not for the certainty i.e., distribution of grains every month, the scheme would not be beneficial. In fact, the absence of certain legal regime at the WTO level is preventing countries like India and China from bettering their Public Distribution Systems.[4] Another example could be any nascent industry. Say for example, the Crypto or a Space sector industry in India. The foremost demand from these industries, to the government, has been that there should be legislation governing their sectors. Why is there such a demand? It is to ensure certainty in terms of how they are treated by the government.[5] Such certainty provides them with a constant business environment and allows them to make better management and financial decisions. Although some scholars could argue that this kind of certainty facilitates the capitalist foundations and they are not wrong.[6] However, certainty also benefits society as a whole and the facilitation of a capitalist foundation is a by-product. Uncertainty, on the other hand, brews discontent, disappointment and despair. There is no better example than the recent Covid-19 pandemic to demonstrate how disastrous absolute uncertainty can be. There is scholarship too, that argues that legal uncertainty leads to gender and “class-regressive and gender-regressive” side effects.[7]
Certainty in Rule of Law and the Constitution
What then is Certainty in a constitutional sense or a legal sense? Rule of law denotes certainty in terms of how societies function and the rules they follow. For different relations between people i.e., between families, between individuals and state, between businesses, between the state and different sections of people- the law is the governing entity rather than a person or a group. However, if people and the relations are subjected to a constantly changing law, there is very little growth for such relations since much of the effort is spent in adapting to the new law. Therefore, one of the necessary elements of the concept of Rule of Law is certainty.[8]
It is the Indian Constitution that lays down a clear line of some certainty for future generations of the kind of society and state India must evolve into. This has to be seen within the view of not merely the constituent assembly debates or the jurisprudence that has evolved since independence but also to be viewed within the context of the vast and myriad struggles against colonial rule and domination, the issues, concerns, demands and values they threw up. All these factors, then, united our people who are otherwise diverse and different, divided by regions, religions and languages. These certain elements of rule of law include Equality, Equality before the Law, Rights for All, Democracy, Secularism, Republican form of government, separation of powers and a commitment to the idea of India where citizens are empowered with rights, limitations are placed on the state to prevent it from engaging in excess etc. It is therefore important to have this certainty of a societal order, with respect to some very basic notions, so that Indian society can thrive.
The second moot question that needs to be explored is how the notion of Parliamentary supremacy will be or is, detrimental to this goalpost, of certainty.
Parliament is a volatile body. As an institution, it has the sanction of the Constitution but as a body, its constituents change within years and therefore, its agenda, functioning etc also changes. A simple example is how the Indian state is no longer wanting to engage in businesses which was an important function of it, in the era immediately after independence. Therefore, aided with this volatility, a Parliament can alter priorities and policies; however, controlled by temporal political forces, if it is allowed to do so, it can alter the basic (structure) principles and the certainty such principles provide.
Such change will only be detrimental to society because a Parliament changes periodically and with this change, basic principles also would and could change. If a Parliament at one time decides that the country has a state religion, and by the time people adopt it, another elected Parliament in another term roots for a state that is secular with no religion. Without the certainty of the basic structure, as provided in the Constitution, this changing notion of how countries (societies) should be, will have a detrimental effect on people since their relationship with each other and with the state will become subject to constant change without any time for adapting to such change.
In summary, societies need the Rule of Law to thrive. The Rule of Law needs Certainty. Certainty needs a Constitution’s supremacy to prevail rather than a Parliament’s volatile and fidgety nature.
A last question that needs to be answered in order to present a complete case for Constitutional supremacy. The question being that, since it is Parliament that is the supreme indicator of people’s will, why should a Constitution written decades ago, prevail over Parliament, a living institution? The answer is that the Parliament is a nascent institution that represents people’s choice between some political parties within an election whereas the Constitution is a culture machine that is not only living but also transforming itself to the changing needs of the society with the help of Judiciary.
If there is to be a fundamental change in the Constitution or in the Idea of India as a whole, that kind of change cannot be initiated or effectuated by a five year tenured body which was not formed for the purpose. The writ of the Constitution did not begin after the Parliament got elected. It was a separate, wide and distinct process which included public mass mobilisations, debates, public participation etc., then culminating into the formal process by the Constituent Assembly. Parliament’s purpose is to make laws while representing the people from all parts of the country. For Parliament to assume power to amend the fundamentals of the Indian constitution, it would need a wider, deeper sanction than a mere general election.
Conclusion
Parliament is given extensive powers within the constitution and for all practical reasons, many more powers have come to be vested with the Parliament and the Executive, since. In both of these organs, people and their ideas dominate for a fixed period of time, depending on people’s mandate, giving rise to potentially arbitrary decisions sometimes. For this huge (misuse of) power to be in check, the Judiciary acts as a protector of the Certainty the constitution provides for people.
While Law should not be rigid and be amenable, the processes to amend some basic principles which form the bedrock of societies should not and cannot be just placed in the hands of elected legislatures.
[1] Vice President Jagdeep Dhankhar’s Address , 83rd All India Presiding Officers’ Conference, Jaipur, Sansad TV, At 24:15. Accessed at https://www.youtube.com/watch?v=2RygIjSF7G8&t=1321s
[2] Vice President’s Address, at 29:54
[3] Kesavananda Bharti vs State of Kerala, (1973) 4 SCC 225
[4] D. Ravikant, Food Security : India, China want ‘legal certainty’ for permanent solution, 27 Nov 2017, https://www.livemint.com/Politics/Atc2o1ngtBFW2s2UTzFrpL/Food-security-India-China-other-G33-nations-want-legal.html
[5] Unlocking the Potentials of Space Sector in India: The Way Forward, Varadharajulu Gopalakrishnan and Baruah Rishiraj, New Space 2022 10:1, 14-19, https://www.liebertpub.com/doi/10.1089/space.2021.0040
[6] Tamanaha, B.Z., 2012. The history and elements of the rule of law. Singapore Journal of Legal Studies, (Dec 2012), 240, pp.232-247,
[7] Weiss, U., 2019. The Regressive Effect of Legal Uncertainty. J. Disp. Resol., p.149.
[8] Ciongaru, E., 2016. CONSTITUTIONAL LAW CONNOTATIONS OF LEGAL CERTAINTY IN THE RULE OF LAW. Fiat Iustitia, (1).
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