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A Strict Constitutional Court and the ‘Will of the People’

With the Supreme Court’s recent vigilance in the Registry (administrative wing), and appointment of Chandrachud J. as the CJI, a popular narrative, led by the Union Law Minister, has yet again started to crop up that since the Parliament is considered to be a continuous and unbroken symbol of the ‘will of the people,’ the […]

With the Supreme Court’s recent vigilance in the Registry (administrative wing), and appointment of Chandrachud J. as the CJI, a popular narrative, led by the Union Law Minister, has yet again started to crop up that since the Parliament is considered to be a continuous and unbroken symbol of the ‘will of the people,’ the constitutional courts should refrain from interfering in the parliamentary functions, on account of averting the ‘usurpation of legislative power.’
Positioning the ‘Will of the People’
The question, however, remains whether the ‘will of the people’ represented by the Parliament exists – as magnetic field lines – in the form of a continuous curve, thereby unbroken; or, as a combination of infinite points on a plane, that is, a line that can be broken at any point? If the former, the hypothesis that the Parliament is a symbol of the continuous ‘will of the people’ holds its merit and limits the role of a writ court, consequently, de facto unquestionable in its functions; if the latter, the ‘will of the people’ becomes questionable by the Court at any specific point where it breaks. A preliminary reading of the Indian Constitution book shall demonstrate that it suggests the latter.
Before we get into the solution of this puzzle, it must be borne in mind that the solution being proposed, of course with proofs, is not pedantically neutral but intended to make a point – that the parliamentary function, although a reflection of the people’s will, is subject to the Court’s scrutiny, for in a constitutional republic the people’s will – collective or individual – is subject to constitutional norms. The method of inductive logic may help in determining the correct position of the ‘will of the people.’
Individual vs Collective ‘Will’
Consider the will an individual. Can it be, in a constitutional republic governed by the rule of law, free from all restraints? Article 21 of the Indian Constitution would answer in negative. The notion of denial of an individual’s will is ingrained in the Constitution, for it might be coerced or illegitimate at any time ‘t’ and space ‘s,’ subject only to the condition that it be as per the law. That is, the ‘will’ of an individual is not allowed to transcend the demarcation of a legal boundary. Needless to say, the demarcation be subject to the letter and spirit of the constitutional provisions. The affirmation of this statement, then, leads us to the next question.
As seen, an individual’s ‘will’ is contingent upon constitutional norms, accordingly, subject to the Court’s interference. For example, a person is not permitted to murder citing her ‘free will.’ Then, can the collective ‘will of the people’ represented by the Parliament be unfettered, therefore unquestionable? The method of inductive logic of inference would say ‘no.’ Naturally, if an individual’s will is subject to the rule of law, and need not be coerced or illegitimate, a colour of ‘collective’ could not be allowed to evade that threshold. Else, an alternate translation of this rule would turn out to be ‘if you strive to do something illegitimate, mobilise!’
Giving Constitutional Silence A Voice
Even assuming whilst denying (a courtroom phrase), to critically test the inference of premise without admitting, that the above inductive logic does not hold water; there are both implicit and explicit constitutional provisions that affirm the proposition that the ‘will of the people’ is not perpetual, consequently, it could be questioned. Firstly, the constitutional set-up, and the Constitution itself, which serves as an edifice for all democratic institutions functioning in India by demarcating, thereby limiting, their powers presume the fact that the ‘will of the people’ vested in the Parliament is not continuous, therefore, questionable by the Court. One may, under the guise of the role of a grammarian, snark: ‘On which page of the Constitution it may be found?’
When posed with a similar question of implied or presumed term in a contract, Lord Justice MacKinnon painted the picture of a fictitious character – ‘the officious by-stander’ in Shirlaw v Southern Foundries. To rephrase his description in our context, prima facie, if any constitutional provision is left to be implied and need not be expressed, is something so obvious that it goes without saying; so that, suppose, while the members of the constituent assembly were making their bargain in the assembly among themselves, an officious bystander were to suggest some express provision for it in the Constitution book, they would testily suppress him with a common ‘Oh, of course!’
This is precisely the test for implied provisions. In the shadow of a written Constitution and its ideals such as separation of powers, checks and balance, and independent judiciary, if any bystander were to suggest the explicit addition for judicial review of parliamentary functions to the constitution-makers, the framers would have had no reply but to say ‘Oh, of course!’
Effectuating the Silences with Written Words
Secondly, the prior presence of cure for the malady of irregular or sporadic nature of the ‘will of the people’ vested in the Parliament, that is, when the mandate gets illegitimate or coerced, at any point of the line, by the route of explicit provisions, such as the measure of protection under the Article 13(2) of the Indian Constitution, anti-defection laws, and the bicameralism to keep a check on majoritarian sway, among others, prove that the ‘will of the people,’ although a Gordian knot, can be ironically broken at any point. The specific point at which the so-called ‘will of the people’ gets dislodged, an inevitable green pass reaches to the door of a constitutional Court, to intervene and restore the sanctity and legitimacy of the people’s will. The equivalence, therefore, of the Parliament with that of people’s will is not an axiom to consider, or ‘given’ in mathematical terms, but a paradox to argue.
In criticism, a cliché question is thus asked whether the ‘will of the people’ vested in the Parliament be replaced by the courts? This outlook, however, overlooks the basic fact that the Constitution itself entrusts the power of judicial review to the courts, envisioning an idea of constitutional supremacy and not that of a court or Parliament. Still, when the court tries to stand up against the tempest of the Parliament, a charge sheet is filed against the former under the heading ‘usurpation of legislative function,’ whereas what it simply does is state the law – a classic case of attacking the straw man.
Without any prejudice, even assuming, if Felix Frankfurter’s advice to Prez Roosevelt that “[p]eople have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of course, in so many vital cases, it is they who speak and not the Constitution,” holds any merit. The caution of Lord Denning, given elsewhere, that “[s]ome one must be trusted. Let it be the judges,” comes as an existential condition for the survival of a constitutional republic with a written Constitution and independent judiciary.

The author is reading law at the School of Law, Narsee Monjee Institute of Management Studies (NMIMS), Mumbai.]

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