The Indian Constitution : A Mixed Success

The RCB meeting of 10th January saw an impressive turnout of people to hear Dr Chintan Chandrachud, Associate, Quinn Emanuel Urquhart & Sullivan LLP London . The happy occasion saw RCB President Dr Mukesh Batra announce that Past President (PP) Dr Rumi Jehangir had through the AH Wadia Trust made a donation of Rs 25 lakh towards the HTEC while JK Helene Curtis made a donation of Rs 13.93 lakh and Raymond UCO Denim Rs 10.5 lakh for Urban Conservation for the Asiatic library. “Our sincere thanks also to Hoshang Nazir for his donation and Rotaryanne Seema Makhija for her $1000 donation to the Paul Harris Fellowship.,” said Dr Batra.

Introducing the speaker Rtn. Subrato K Mitra said he had blue chip qualifications with a PhD from Cambridge and graduate degrees from Yale and Oxford.”His father is a judge in the Supreme Court and in line to be a potential Chief Justice of India following in the footsteps of his grandfather Justice YV Chandrachud. It’s a tough subject and I look forward to what lies ahead of us,” said Rtn. Mitra.

Dr Chandrachud focused his talk on the 70 years of the Indian constitution on how the Supreme Court (SC) has interpreted the Constitution and how it may do so in the future. “I will sandwich my criticism between praises,” said Dr. Chandrachud. He said the Indian constitution has been a resounding success when one considers it in comparative terms and one keeps in the cultural and linguistic diversity of our country. “Most scholars at that time had predicted doom for our constitution. Constitution law expert Sir Ivor Jennings had said it’s too long and detailed to survive beyond 10 years,” elucidated Dr Chandrachud.

He said his study of Constitutions since 1789 (the year the US constitution was enacted) to 2012 suggests that the average lifespan of a Constitution is 19 years. “In that respect the Indian constitution has already lasted more than thrice the average. What’s more it’s considered along with that of South Africa as a gold standard in Constitution design,” said Dr Chandrachud.

He also debunked the popular notion that a constitution succeeds only when an economy is prospering and growing. “This wasn’t true of India in the 1980s though even then it was considered a foremost document,” he added. The central role of the SC is seen in the fact that it has bound the constitution and the nation together. The court’s prominent judgements were often cited in newspapers more than those issued by the executive with just one paper referring to them as many as 200-400 times in the course of a year.

“Though the Indian constitution is pretty detailed and long at 450 articles and 12 Schedules there is plenty of interpretation to do as many statutes such as the Right to Life have been left understandably vague such that they can be interpreted in the light of specific cases brought before it,” said Dr Chandrachud. The judgements of the Supreme Court according to him have been influenced by three different approaches. In the first phase the apex court focussed on the plain meaning of words in the Constitution. From the 1970s onwards they looked at the statutes in the context of the broader structure of the Constitution. “This approach allowed the court to enumerate rights not specifically set out in the statute such as the Freedom of Information and the Right to privacy,” said Dr Chandrachud.

One change in the approach of the apex court of our country has also been in the way the SC hears cases. Whilst earlier they were heard by a large panel of eight or so judges including the Chief Justice of India today they are head by smaller benches of two or three judges. This is despite the fact that the strength of the SC has increased from around eight judges including the Chief justice of India (CJI) to around 31 today. “Even though the composition of the SC has changed dramatically they can no longer afford to sit in panels of exceeding five judges. The casualty of this has been well reasoned judgements,” says Dr Chandrachud.

Today 12 to 13 panels of two to three judges take decisions.” There is not one Supreme Court but several SCs sitting in one place, The 12 different panels of judges in effect decide cases differently,” asserted Dr Chandrachud. Unlike earlier where large panels of judges decided cases of monumental importance today this job is delegated to panels of two to three judges. “There is a relationship between the structure of a court and the reasons it gives for its decisions. “Panels of smaller number of judges often lead to less reasoned judgements as they don’t engage as much in sophisticated reasoning as dissenting opinions are usually absent in smaller judge benches,” said Dr Chandrachud.

He feels that the quality of reasoning has fallen under this approach and has led to a situation where the outcome of cases often depends on which bench they go before.”A decision of two three judge bench today is less likely than before to represent the opinion of the whole court. We now have a situation akin to Panchayati eccelectism where panels may decide cases divorced from precedent and established interpretation of the statute and based on their self conceptions of their role as sentinels of democracy, cleansers of political process and making decision based on that,” he added.

According to him this has led to varying interpretations of the same statute. For instance a 2013 judgement of the SC suggests that the right to vote is a statutory right that can be given and also taken away but none of the above vote judgement suggests that the right to vote is a right guaranteed by the Constitution. He also gave other examples of such inconsistencies such as the National Anthem case where in its two page order the court failed to provide a reasoned basis for invoking the principle of national patriotism as a the principle underlying its order.

While there has been some increase in the number of constitution bench judgements in recent times less than a percent of cases brought before the apex court are decided by such benches. “This may be because unlike the US or the UK Supreme courts which hear less than a 100 cases a year, the Indian SC deals with as many as 60,000 cases annually. This severe stress is affecting the quality of reasoning,” said Dr Chandrachud. As a result of this the SC is under severe pressure and its dockets are overflowing. According to him the only way to deal with this situation may be to restrict access to the court of final appeal to allow it more time for considered judgements without being overtly stressed.

“Courts are expected to adjudicate rather than vote. The failure to give sophisticated reasoning underlying the judgements makes it look as if the SC is voting rather than adjudicating on a matter,” he added. He said that public opinion including censure on the decisions of the court should be welcome up to a point and contrasted how the Indian press is largely restrained in its criticism of court orders.

“The Indian constitution is a success story but there is much to worry about,” he concluded.

Giving the vote of thanks Rtn. Mudit Jain said this is the third generation in the family that follows in the tradition of being distinguished lawyers.”Thank you for summing up the topic” concluded Rtn. Jain.