Interpretations overshadow Constitution while SC stays sole arbiter  

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Constitution stays dynamic amid judicial interpretations

By R. Narayanan

Indian Constitution is unique. Mere reference to any publication of Constitution of India is not relevant to the actual position of the provisions of the Constitution.

Many provisions of the Constitution have undergone changes, not because of their amendments by Parliament, which are no doubt incorporated in the statue book, but because of various judicial decisions of the Apex Court.

In fact, unless you keep the judicial decisions readily with you, it is difficult to understand the actual provisions of our Constitution. This may look odd but this is a fact, right from Article 1 of the Constitution.

For example, Article 3 & 4 provides powers to Parliament to change the boundary/territory of the State/ Union Territory. These amendments, made by an ordinary law through Article 3&4, amend Schedule I and Schedule IV, though these are not treated as amendments for the purpose of Article 368.

Nevertheless, the Supreme Court has declared that Parliament can transfer any territory of the State to a foreign country not under Article 3&4 but only after amendment of the Constitution by a procedure given in Article 368.

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Similarly, the Doctrine of Basic Structure is not mentioned in any of the provisions of the Constitution. Only the Apex Court can declare which feature of the Constitution is Basic Structure.

It can do so from time to time in its rulings.  No basic feature has been discarded so far. It is a continuous process.

Chief Justice of India, District Judiciary, Article 142, Art 32, Art 136 Art 226, Art 227 and so on so fourth — many provisions have been declared as basic structure. Nothing is mentioned in the Constitution.

So also, the system of Collegium for appointment of Judges of Supreme Court and High Courts. Even the concept of creamy layer for reservation of seats in Educational Institutions and jobs in Services under the State for Other Backward Classes referred to in Article 15 and 16 is not found in the Constitution.

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Again, Article 39(b) (c), the two directive principles were given precedence over Fundamental Rights, only by judiciary. This has also been not seen in the Constitution.

Article 21 says that no person shall be deprived of his life or personal liberty except according to the procedure established by Law. The term “due process of law” has not been mentioned in Article 21.

However, the Supreme Court has interpreted the “procedure established by Law” to include due process of law.

Under Article 74, there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in exercise of all his functions, act in accordance with such advice.

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However, President may require Council of Ministers to reconsider such advice either generally or otherwise and the President shall act in accordance with such advice tendered after reconsideration.

The question whether any and if so what, advice was tendered by Ministers to the President shall not be enquired into by any Court – a Judicial immunity given to all cabinet decisions.

Contrary to this in S.R. Bommai Vs. Union of India (1994), the Apex Court has declared that when the President Rule under Art 356 is recommended and imposed, the recommendations need to be produced in the Court, if the court so directs, so that the court can establish malafide if any.

So, mere reading of the Constitution may not give the real meaning of the Constitution. Any number of cases can be added under these categories.

To overcome this anomalous situation, what we can think of is that the Supreme Court can bring out periodically a compendium of all judicial decisions/interpretations, relevant to the provisions of the Constitution which were subject to scrutiny and judicial review by the Apex court.

This task cannot be entrusted to the Executive or Legislature because both of these institutions may have vested interest in such interpretations.

(Opinions expressed in the article solely belongs to the author)

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