Opinion: Constitutional fidelity must

Competing for supremacy among organs of state should not compromise either the letter or spirit of our Constitution.

By Nayakara Veeresha

Hyderabad: India has achieved a fairly well-functioning parliamentary democracy. Democracy is not about majoritarianism or authoritative governance. GV Mavalankar, the first Speaker of the Lok Sabha, said: “If we are to go merely by majority, we shall be fostering the seeds of fascism, violence and revolt” while suggesting the cultivation of democratic spirit through Parliament as an independent institution rather than a place of change of party or regimes.

One of the most disturbing aspects of contemporary politics is the normalisation of social violence and the militarisation of society. This needs to be seen from the perspective of masculine politics, the use of force as the main instrument to usher in any kind of change in society. This is one of the dimensions with deep ramifications on the social fabric and political values of the country and is contrary to the Directive Principles of State Policy.

Being Faithful

The constrained space for social science research over religious dominance and supremacy of the singular idea of nation-state means the end of critique, dissent and debate which are the core principles of parliamentary democracy. Be it majoritarian or coalition, what matters is whether the top leadership of the single or multiple parties show commitment to the constitutional values of democracy or not. The role of top leadership matters a lot in protecting and preserving the democratic legitimacy of Parliament as the country witnessed in the formative stages of the Indian republic.

Goodwin Liu et al (2009), in ‘Keeping faith with the Constitution’, introduced the concept of constitutional fidelity to understand the spirit of the Constitution in the context of the United States of America. According to them, constitutional fidelity means “to be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution’s meaning and democratic legitimacy over time”.

Basically, constitutional fidelity is an approach to interpreting the constitutional provisions in a progressive way so as to reflect the social changes in a polity and society. The ongoing rift between the Legislature, Executive and Judiciary reflects the power struggle between the different organs of the state. This is a case of clear violation of the doctrine of the separation of powers and indicates the non-commitment of governing elites to constitutional fidelity.

The constitutional authorities in contemporary times are unhesitant to deviate from the spirit of constitutional fidelity. The growing tussle between the Judiciary and the political Executive especially in delineating a discourse of construing parliamentary supremacy over the other organs reflects the low constitutional morality among the same.

Collegium System

Dr BR Ambedkar and others were not in favour of having veto power with the CJI in the appointment of judges and hence instituted a consultation process with the President of India. The dilution of this consultative process necessitates the need to take into account ‘Constitutional Fidelity’ (Liu et, al) in which the original intent (consultative process) and keeping in tune with time (open to reforms) in interpreting the Constitution are imperative.

The continuation of the collegium system indicates the negation of the original intent of the Constitution-makers whose wisdom proposed consultation and participative process of appointing judges. Most importantly, the extra-constitutional system like a collegium with very little scope for transparency gives rise to huge concerns about the accountability process. This deviation from the original intent of the Constitution-makers is contrary to the principles of good governance and liberal democracy.

The decision to set up the collegium is fine as an alternative mechanism but defining its own composition is clearly not in the domain of the Judiciary and it qualifies for judicial governance. It is worthwhile to look at the broad approaches that are in place to interpret the Constitution namely: original intent of the framers; and as an evolving or living document.

In the Second Judges’ Case, the top court followed none of the above approaches and in fact departed from these methods of interpretation only to arrive at mechanical interpretation without acknowledging due respect to the intent of the Constitution-makers. It also failed to take into account the evolving socio-political context wherein transparency and accountability of any institution are indispensable for democracy.

Liu et al (2009) understand constitutional fidelity as “the words of the Constitution must be read in context, and interpretations must sometimes change as the context changes if the meaning of the text is to be preserved over time. That is what fidelity to the Constitution requires. The constitutional fidelity serves not only to preserve the Constitution’s meaning over time but also to maintain its authority and legitimacy”.

Constitutional Supremacy

The ongoing tussle between the Judiciary and Executive/Legislature and conflict between Governors and elected governments indicate four important characteristics, namely: crisis of moral leadership; changes in the value system, in general, and political values in particular; construing majority view/opinion as democracy thereby depriving the voices and representation of minority communities and finally the power struggle among the organs of the state. In the current instance, the Executive and Judiciary seem to be fighting for supremacy in terms of judicial appointments.

A cautious and detailed reading of the Constituent Assembly debates on the same clearly indicates the negation of vesting supremacy in any one organ of the state. The concern must not be on the supremacy of any of the organs of the state but rather it is the supremacy of the Constitution which needs to be upheld. For constitutional fidelity to blossom, there is an urgent need for building the capacity of political parties and leaders in terms of constitutional morality. Both constitutional morality and fidelity are imperative not only to preserve and protect our democracy but also to progress in the desired directions of the Preamble.