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(As part of our blog round-table book discussion, this is the first of the substantive responses to Rohit De’s A People’s Constitution, by Suhrith Parthasarathy.)

Suhrith

Suhrith Parthasarathy

Rohit De’s “A People’s Constitution: The Everyday Life of Law in the Indian Republic” is an extraordinary book and demands engagement not only by lawyers and historians but by anyone who’s interested in the state of India’s polity. The book seeks to bust the myth that the Constitution represents a preserve of the privileged and the elite. It shows us instead how the document came to occupy a central place in the daily life of the citizen. De achieves this by framing each of his chapters around a distinct set of constitutional challenges—the idea behind this, as he writes, is to underscore three connected themes: “the process through which the Constitution emerges as an organizational assumption and a background threat for the state; the greater accountability of procedural over substantive challenges to government action and the origins of constitutional consciousness among certain citizens.”

In the present post, I’ll look to focus on the second of these themes, that is the higher judiciary’s—both the Supreme Court and the high courts’—greater receptiveness to claims made over procedural irregularities over claims made through an assertion of substantive rights. This proclivity, which is sometimes profoundly injurious to the Constitution’s guarantee of fundamental rights, I’ll argue, is a product of design, an inherent weakness in the nature of writ jurisdiction. Assertions for substantive rights tend not to enjoy an equal level of traction as assertions made over procedure, because they require the courts to engage with competing arguments at a deeper factual level, requiring a testing of the veracity of claims and counter-claims made both by petitioners and the state alike.

Indeed, the very cases that De has chosen to concentrate on, which have no doubt intensified the Constitution’s reach, making India, in the author’s words, “a Republic of Writs,” bring to light this limitation. Consider the slew of petitions filed in 1957 challenging the validity of laws banning cow slaughter, which culminated in the Supreme Court’s judgment in Mohd. Hanif Qureshi & Others vs The State of Bihar. One of the key arguments made by the Qureshi community was that a law banning cow slaughter altogether would only prove wasteful, and would, in fact, militate against the text of Article 48, which, as a directive principle, enjoins the state to “organise agriculture and animal husbandry on modern and scientific lines,” and “take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”

In seeking to further this argument, the petitioners in Mohd. Hanif Qureshi had cited a 1953 circular issued by the Union Ministry for Food and Agriculture, which read as follows:

“A compulsory ban on cow slaughter would lead to a lower standard of cattle life in the country. Nearly 40 million cattle in the country do not give milk and are a drain on available fodder and other cattle food. Their maintenance entails enormous expenditure, making it impossible to provide the care and nourishment to productive cattle that is required to improve their milk and capacity and traction power. The result is that even productive cattle gradually deteriorate and cease to be productive.”

 

Additionally, the Qureshis claimed in court that a ban on cow slaughter would result in depriving many people of a cheap source of food. What’s more, the measure, they contended, was economically faulty. To this end, they relied on data which showed that an increase in cattle between 1945 and 1951, on account of a reduction in cow slaughter, had not led to a concomitantly significant increase in the supply of milk. Further, a complete ban, they argued, would also substantially damage trading in leather apart from putting an end to a range of other industries, including gut making, glue making and blood dehydrating.

One petitioner, Mohammed Siddiq from Rampur, De points out, made a rather curious, but potentially compelling argument. Abandoned cattle, which went “unclaimed by anyone and which could be destroyed by no one,” he asserted, were roaming the countryside freely and were forcing cultivators to hire people to merely keep watch over the fields day and night to ensure that these cattle weren’t causing any damage to their crops.

On the other hand, one of the respondents in the Supreme Court, the Government of Uttar Pradesh, rebutted these claims by relying on the findings of the Gosamvardhan Enquiry Committee Report. The report, the state argued, had made it clear that the “absence of the ban on cow slaughter had been tried for years past with no appreciable results on the improvement of the cows, nor have uneconomic cattle been lessened with the freedom to kill.” An absolute ban on cow slaughter, the report had concluded, was the only way at achieving the objectives of Article 48.

Now, how were the judges to test the correctness of these clearly contradictory claims? After all, as a court of first instance, exercising original writ jurisdiction, the Supreme Court did not possess any clear power to call for witnesses, to take evidence from them, and to allow for cross-examination. As De observes, Chief Justice Sudhi Ranjan Das, who delivered the court’s judgment, was frustrated by these limitations. “It is difficult to find one’s way out of the labyrinth of figures,” he wrote, “and it will be futile for us to attempt to come to a figure of unserviceable agricultural animals which may even be approximately correct.”

This handicap (which isn’t present when courts of first instance exercise ordinary original civil jurisdiction, for example) has meant that the Supreme Court, and the high courts, when exercising their authority to issue prerogative writs have tended to see fact finding as lying outside the scope of their powers. Every time a court, despite claims of substantive rights violations being made, is asked to determine a question of fact it dithers. In doing so, the invariable consequence is a lending of credence to the state’s version of events. This was apparent most recently in the challenge made in the Supreme Court to the constitutional validity of the Aadhaar Act. Reams of affidavit evidence were submitted by the various petitioners highlighting the exclusionary characteristics of the programme. But these were brushed aside with disdain, and, instead the court placed enormous reliance on a “power-point presentation” made by the chairperson of the UIDAI, the nodal authority in charge of running the Aadhaar programme. Given that these facts were not supported by evidence on affidavit, ordinarily the court shouldn’t have so much as allowed the presentation to be aired. But this goes to show how far the court’s writ jurisprudence hamstrings its powers to determine disputed questions of fact.

Yet, constitutional challenges can never really be divorced from fact-finding. In the Aadhaar case, the Supreme Court’s majority opinion conceded that a test of “proportionality” ought to form the basis for judicial review when claims are predicated on a violation of a right to privacy. But, as Mariyam Kamil has pointed out in this blog, this is a test that demands an intense enquiry into facts. In the case before it, to apply the test of proportionality to the Aadhaar Act, the court would have had to answer a series of factual questions, including as Gautam Bhatia has written here, whether Aadhaar-based biometric authentication was effective at plugging welfare leakages (which was what the Act claimed as its purported goal)? Whether there were effective, alternatives to Aadhaar which can help achieve the same goal? If so, were such alternative measures less intrusive on the right to privacy? It is only in answering these questions could the court have really determined whether Aadhaar was the least restrictive measure available to achieve the legislature’s goals.

Over the years, when faced with conundrums over how to test contradictory claims, the Supreme Court has customarily either veered towards accepting the government’s statement of facts (we recently saw an extreme version of this in the Rafale judgment) or has appointed an expert (usually an amicus curiae) to file a report—in Qureshi’s case, for example, the court invited Thakur Das Bhargava, who, as a member of the Constituent Assembly, had been instrumental in drafting Article 48. But invariably the appointment of an amicus curiae has only resulted in dispensing with the standard rules of evidence in an adversarial proceeding. As S. Muralidhar, now a judge of the Delhi High Court, wrote in 1998, the upshot of all of this is that the petitioners are “entirely at the mercy of the amicus curiae who as the delegate of the court’s screening power can decide who can or cannot petition the court and what can and cannot be said by them.” [For a detailed discussion on the dangers of making petitioners dispensable, see Anuj Bhuwania, Courting the People, which was reviewed here].

De’s book shows us that on the making of the republic, writ petitions were new not just to litigants but also to lawyers and judges alike. Justice Mehr Chand Mahajan, India’s third chief justice, quite candidly admitted that his knowledge of constitutional law, when he was appointed to the bench, was rather limited, and that he spent his first couple of years on the Supreme Court reading American constitutional jurisprudence. But those early years, in which the Constitution transformed the lives of the ordinary citizen, what also became quickly apparent was the inherent limitation in using writ petitions as a means to further substantive rights. Almost right from the outset, both the Supreme Court and the high courts struggled to resolve what they perceived as a dichotomy between fact-finding and constitutional judgment. Even though the Supreme Court now recognises, in theory, that laws made by the state ought to conform to due process, both substantive and procedural, the limitations of the judiciary’s writ jurisdiction have meant that litigants, on the advice of counsel, have had to structure their strategy by predominantly grounding their arguments on procedure.

Hence, quite contrary to what the general theory of constitutional jurisprudence in India posits, adjudication continues to be centred on an assumption of legislative facts. But to conduct a meaningful judicial scrutiny of legislation, a disinterested and rigorous consideration of facts becomes essential. There is, therefore, an imminent need to think more carefully about burden of proof and rules of evidence in constitutional cases—relying merely on the filing of affidavits, counter-affidavits and affidavits in rejoinder has proved grossly insufficient. Now, no doubt, in principle, depending on the nature of the violations alleged and the nature of the scrutiny employed, the onus of establishing a set of facts tend to shift to the state. But the question of when this burden gets discharged remains. How must a court appreciate the different statements of fact made before it?

De’s book, like the best books on history, unearths events from the past by enlightening the present moment. In showing us how constitutional law can intersect with rules of evidence he presents an issue of substantial, contemporary importance. Ultimately, it’s imperative that courts establish a cogent and consistent approach to resolving disputed questions of fact. Only then will constitutional adjudication transform itself from concerns over procedure to concerns over substance.