Constitutional jurisprudence N.R. MADHAVA MENON Omnibus bringing together highly acclaimed essays written by a leading constitutional expert CONSTITUTIONAL QUESTIONS AND CITIZENS' RIGHTS: A. G. Noorani; Oxford University Press, YMCA Library Building, Jai Singh Road, New Delhi-110001. Rs. 595. The Hindu Tuesday, May 02, 2006
The constitution is differently described as the fundamental law, the socio-political manifesto of a nation, the instrument of governance and the like, each signifying an important dimension of the document. It is a living thing with a body and a soul; the soul can possibly be found in the preamble and the chapters on rights, duties and directive principles of state policy. Constitutional questions are diverse and too numerous to engage academic writings and political discourses without end. It is more so with the Indian Constitution, one of the longest and a blend of many ideas and principles borrowed from constitutions across the globe.
The Constitution Review Commission set up by the NDA Government did make an assessment of the working of the Constitution over half a century and endorsed its viability, though it recommended few amendments to make governance more effective and accountable. The beauty of the Indian Constitution lies in its flexibility and its capacity to accommodate diverse interpretations and approaches advanced according to changing times and demands.
Rule of law
A.G. Noorani is a well-known commentator, widely read and respected, on constitutional law and governance. He has strong views on how governance needs to be organised and policies evolved. According to him, "Not one of the major institutions and high offices established by the Constitution has worked satisfactorily; be it the President, Parliament, the Prime Minister, the Council of Ministers or the Supreme Court of India." Most of the chapters in the book under review are well-researched pieces to establish this point of view with which, however, the reviewer begs to differ. The arguments are too many to be raised in the format of this review.
Be that as it may, the value of a work of this nature does not lie in the views and the conclusions drawn but rather in the research, documentation and analysis it presents. From this perspective the work is undoubtedly a valuable addition to the existing literature on the subject.
As the sub-title indicates, the book is an omnibus comprising several articles previously published separately on different occasions.
The central theme of all these articles is said to be "rule of law in democratic society." There are nine additional pieces introduced in this volume on a variety of topics broadly grouped under constitutional questions (relating to the chapters on the president and on the parliament) and citizens' rights, judges and state accountability (these include right to know, right to strike, contempt of court and selection of party candidates).
Constitutional questions
The author has attempted with fair amount of success to capture the "constitutional questions" around three major institutions namely, the president, parliament and the state. Several contentious issues relating to powers of the president are discussed taking events of constitutional history and decisions taken by successive presidents. He finds that only after Dr. S.D. Sharma became President in 1992, the office acquired some authority and significance.
An informative essay added to the current volume is a piece on the German legal scholar, Dieter Conrad, who is credited with having contributed the `basic structure' doctrine in the well-known Keshavananda Bharati Case (AIR 1973 S.C. 1461). Under this doctrine the Court upheld the sanctity of the Constitution by declaring that the amendment procedure is inapplicable to alter what it called the basic structure of the Constitution. In other words, the basic structure is not amendable.
In adopting the doctrine, Justice Khanna reportedly approved the following observations of Conrad: "Any amending body organised within the statutory scheme, however verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority." The doctrine, it is pointed out was adopted by the Supreme Court of Bangladesh in 1989 in Anwar Hossain Chawdhary's Case (41DLR 1989 App. Div. 165) expressly relying on the reasoning in the Keshavananda Case of 1973.
All the ills of the parliamentary system perpetrated by political parties which themselves functioned undemocratically with no sense of constitutional morality are explained by the author in relation to "irregular dissolutions", "defections", "bribery of MPs" and a number of related events which cumulatively tended to undermine people's faith in parliamentary democracy itself.
Ethics
In a couple of additional pieces newly introduced to the section on Parliament, the author reflects on ethics of ministers and MPs. Written for Frontline in October 1994, Noorani found the situation far worse than it was 20 years ago when Jayaprakash Narayan (JP) launched his movement against corruption. Bribery of a legislator constitutes a breach of privilege of the House, not an offence in law!
The author, inter alia, suggests a series of steps to confront the situation including electoral reforms, an effective Lok Pal, a revised anti-defection law, a code of conduct and prompt public disclosure of important state contracts, permits and exemptions.
The second half of the book on the judiciary and citizens' rights is a compilation of 50 articles on the working of the judiciary, its accountability and the scope of select rights of citizens. Most of them written between 1966 and 1999 cover a wide range of issues, which came up for judicial scrutiny during that period. In addition, this part of the volume contains a section on the elections, the civil service and the political process.
With a clear sense of history and a broad perception of comparative constitutional law, the author has marshalled a large volume of data to advocate the importance of rule of law, values of pluralism, secularism and democracy, and the role institutions and individuals play in good governance. The author discerns a silver lining in an otherwise grim political scenario. He finds a remarkable awakening among the people after the Emergency. "The advent of investigative journalism and public interest litigation helped enormously as did the rise of non-governmental organisations," observes the author.
Contempt powers
There are half a dozen fresh papers added to this section which relate to protection of journalists' sources, right to know, contempt powers of courts, right to strike and party system. Quoting extensively from precedents in the U.S. and Europe as well as from the Press Council Act, 1978 and the Law Commission Report (93rd Report on Disclosure of Sources of Information by Mass Media, 1983), the author asserts that journalists are legally supposed to be protected from disclosing their sources in India as well. However, he wanted an amendment of the Indian Evidence Act on the lines recommended by the Law Commission to make the matter explicit.
On contempt powers of the courts, he advocates truth to be accepted as a defence, which incidentally is now accepted and enacted through an Amendment (2006) to the Act. However, he is critical of the Supreme Court exercise of contempt power in the Arundhati Roy judgment (Narmada Bachao Andolan V. Union of India and others (1999) 8 SCC 308).
The author argues that Roy was well within her right of free speech under Article 19(1) and (2) in making the statement on the Court's action. The author also writes that courts giving oral edicts to the press not to report the names of the judges who made observations during the proceedings are unconstitutional. Similarly, the Court's power to direct parties not to ventilate their grievances in the press while the proceedings are on in the Court is to be qualified since a total ban may not be constitutionally justified.
This book is a storehouse of information on a large variety of constitutional and legal issues written after thorough research and reflection. It is a valuable guide for academicians, legal practitioners, journalists and people in politics and government. Even if one does not agree with the author's views and conclusions, they do provide insights on legal reasoning and contextual judging on a large number of topics of public interest.
As stated earlier, the book is a consolidated version of two earlier volumes, one published in 2000 (Constitutional Questions in India) and the other in 2002 (Citizen's Rights, Judges and State Accountability). It is no doubt, a scholarly tribute to Indian constitutionalism and rule of law despite the inadequacies pointed out by the author. The production is of high standards and the price is reasonable. Above all, the style and clarity of the work are indeed inviting even for readers outside the field of law and governance.
The Constitution Review Commission set up by the NDA Government did make an assessment of the working of the Constitution over half a century and endorsed its viability, though it recommended few amendments to make governance more effective and accountable. The beauty of the Indian Constitution lies in its flexibility and its capacity to accommodate diverse interpretations and approaches advanced according to changing times and demands.
Rule of law
A.G. Noorani is a well-known commentator, widely read and respected, on constitutional law and governance. He has strong views on how governance needs to be organised and policies evolved. According to him, "Not one of the major institutions and high offices established by the Constitution has worked satisfactorily; be it the President, Parliament, the Prime Minister, the Council of Ministers or the Supreme Court of India." Most of the chapters in the book under review are well-researched pieces to establish this point of view with which, however, the reviewer begs to differ. The arguments are too many to be raised in the format of this review.
Be that as it may, the value of a work of this nature does not lie in the views and the conclusions drawn but rather in the research, documentation and analysis it presents. From this perspective the work is undoubtedly a valuable addition to the existing literature on the subject.
As the sub-title indicates, the book is an omnibus comprising several articles previously published separately on different occasions.
The central theme of all these articles is said to be "rule of law in democratic society." There are nine additional pieces introduced in this volume on a variety of topics broadly grouped under constitutional questions (relating to the chapters on the president and on the parliament) and citizens' rights, judges and state accountability (these include right to know, right to strike, contempt of court and selection of party candidates).
Constitutional questions
The author has attempted with fair amount of success to capture the "constitutional questions" around three major institutions namely, the president, parliament and the state. Several contentious issues relating to powers of the president are discussed taking events of constitutional history and decisions taken by successive presidents. He finds that only after Dr. S.D. Sharma became President in 1992, the office acquired some authority and significance.
An informative essay added to the current volume is a piece on the German legal scholar, Dieter Conrad, who is credited with having contributed the `basic structure' doctrine in the well-known Keshavananda Bharati Case (AIR 1973 S.C. 1461). Under this doctrine the Court upheld the sanctity of the Constitution by declaring that the amendment procedure is inapplicable to alter what it called the basic structure of the Constitution. In other words, the basic structure is not amendable.
In adopting the doctrine, Justice Khanna reportedly approved the following observations of Conrad: "Any amending body organised within the statutory scheme, however verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority." The doctrine, it is pointed out was adopted by the Supreme Court of Bangladesh in 1989 in Anwar Hossain Chawdhary's Case (41DLR 1989 App. Div. 165) expressly relying on the reasoning in the Keshavananda Case of 1973.
All the ills of the parliamentary system perpetrated by political parties which themselves functioned undemocratically with no sense of constitutional morality are explained by the author in relation to "irregular dissolutions", "defections", "bribery of MPs" and a number of related events which cumulatively tended to undermine people's faith in parliamentary democracy itself.
Ethics
In a couple of additional pieces newly introduced to the section on Parliament, the author reflects on ethics of ministers and MPs. Written for Frontline in October 1994, Noorani found the situation far worse than it was 20 years ago when Jayaprakash Narayan (JP) launched his movement against corruption. Bribery of a legislator constitutes a breach of privilege of the House, not an offence in law!
The author, inter alia, suggests a series of steps to confront the situation including electoral reforms, an effective Lok Pal, a revised anti-defection law, a code of conduct and prompt public disclosure of important state contracts, permits and exemptions.
The second half of the book on the judiciary and citizens' rights is a compilation of 50 articles on the working of the judiciary, its accountability and the scope of select rights of citizens. Most of them written between 1966 and 1999 cover a wide range of issues, which came up for judicial scrutiny during that period. In addition, this part of the volume contains a section on the elections, the civil service and the political process.
With a clear sense of history and a broad perception of comparative constitutional law, the author has marshalled a large volume of data to advocate the importance of rule of law, values of pluralism, secularism and democracy, and the role institutions and individuals play in good governance. The author discerns a silver lining in an otherwise grim political scenario. He finds a remarkable awakening among the people after the Emergency. "The advent of investigative journalism and public interest litigation helped enormously as did the rise of non-governmental organisations," observes the author.
Contempt powers
There are half a dozen fresh papers added to this section which relate to protection of journalists' sources, right to know, contempt powers of courts, right to strike and party system. Quoting extensively from precedents in the U.S. and Europe as well as from the Press Council Act, 1978 and the Law Commission Report (93rd Report on Disclosure of Sources of Information by Mass Media, 1983), the author asserts that journalists are legally supposed to be protected from disclosing their sources in India as well. However, he wanted an amendment of the Indian Evidence Act on the lines recommended by the Law Commission to make the matter explicit.
On contempt powers of the courts, he advocates truth to be accepted as a defence, which incidentally is now accepted and enacted through an Amendment (2006) to the Act. However, he is critical of the Supreme Court exercise of contempt power in the Arundhati Roy judgment (Narmada Bachao Andolan V. Union of India and others (1999) 8 SCC 308).
The author argues that Roy was well within her right of free speech under Article 19(1) and (2) in making the statement on the Court's action. The author also writes that courts giving oral edicts to the press not to report the names of the judges who made observations during the proceedings are unconstitutional. Similarly, the Court's power to direct parties not to ventilate their grievances in the press while the proceedings are on in the Court is to be qualified since a total ban may not be constitutionally justified.
This book is a storehouse of information on a large variety of constitutional and legal issues written after thorough research and reflection. It is a valuable guide for academicians, legal practitioners, journalists and people in politics and government. Even if one does not agree with the author's views and conclusions, they do provide insights on legal reasoning and contextual judging on a large number of topics of public interest.
As stated earlier, the book is a consolidated version of two earlier volumes, one published in 2000 (Constitutional Questions in India) and the other in 2002 (Citizen's Rights, Judges and State Accountability). It is no doubt, a scholarly tribute to Indian constitutionalism and rule of law despite the inadequacies pointed out by the author. The production is of high standards and the price is reasonable. Above all, the style and clarity of the work are indeed inviting even for readers outside the field of law and governance.
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