16TH AMENDMENT: Judges caught in political divide, govt in quicksand

Part III

Basic Structures Doctrine

44. Now, let me take up the so-called Basic Structure Doctrine, BSD.The principle was first expounded in 1964 by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. Then, under special circumstances and to meet certain constitutional challenge, SCI invented the BSD, which is so vague, uncertain and indefinite that it is still not fit for codification even after 44 years of use since Kesavananda Bharati's case 1973. For ready reference the following cases may be examined to have an idea the BSD,

    1. Shankari Prasad Singh Deo v. Union of India: (AIR. 1951 SC 458)
    2. Sajjan Singh v. State of Rajasthan: [1965 AIR 845, 1965 SCR (1) 933]
    3. Golaknath v. State of Punjab: [1967 AIR 1643, 1967 SCR (2) 762]
    4. Kesavananda Bharati v. State of Kerala: (AIR 1973 SC 1461)
    5. Indira Nehru Gandhi v. Raj Narain: [1975 AIR 865, 1975 SCR (3) 333]
    6. Minerva Mills v. Union of India: AIR 1980 SC 1789
    7. Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha and others: [ JT 2007 (2) SC 1]
    Till today SCI has found about 23 features of the Constitution come under the BSD. The list is not yet complete and exhaustive. To act on any feature depends upon the discretion of a judge from case to case. Treat it as a supra-constitutional principle but not capable of any definition.

45. In Kesavananda Bharati, by a majority of 7:6 the BSD was finally formulated and then Nine judges (including two dissentients) signed a statement of summary for the judgment that reads:

    1. Golak Nath's case is over-ruled.
    2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
    3.The Constitution (Twenty-fourth Amendment) Act, 1971 is valid.
    4. Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid.
    5.The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part namely "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy" is invalid.
    6.The Constitution (Twenty-ninth Amendment) Act, 1971 is valid. [See Wikipedia]

46. SCI also invented the concept of 'collegium' for appointment, promotion and transfer of judges denying any role for the executive, in particular, the President with the result Justice C S Karnan, Justice Soumitra Sen, Justice P D Dinakaran and others entered the judiciary through the process. Hundreds of vacancy are increasing everyday and cases are piling up with record speed. Now, CJI one after another is crying and complaining in public before the Prime Minister of India for intervention. After flow of so much water down the Yamuna, sooner they understand they can only function under the constitution and not authorized to alter or add something what is not there in the Constitution through interpretation is the better, and the talks for a compromise behind the scene could only succeed if this understanding of the Constitution dawn upon them.

47. No jurisdiction except ours does recognize such BSD. The High Court of Singapore denied the application of the basic features doctrine in Singapore in Teo Soh Lung v. Minister for Home Affairs. The Federal Court found BSD inapplicable in Malaysia in Phang Chin Hock v. Public Prosecutor. Pakistan consistently denied existence of such vague and indefinite principle for interpretation of the Constitution.

48. In District Bar Association, Rawalpindi and others v. Federation of Pakistan_SCP-05 August 2015, the Constitution (Eighteenth Amendment) Act (Act X of 2010) was challenged. By an amendment the Parliament brought about extensive amendments of the Constitution of 1973 including transforming the Presidential system into a Parliamentary one.

    The Chief Justice, along with Justice Rahman, argued that the difference in politico-judicial histories of India and Pakistan warrant the assertion that the BSD, as developed in a foreign jurisdiction like India, cannot be applied "unthinkingly" to Pakistan (especially when there is ample dissent in Kesavananda itself), and that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by appropriate political forums (e.g. parliamentary democracy), not by the judiciary. (Underlined by me.)
    By a majority of 14 to 03 the SCP the Constitution Petitions challenging the Constitution (Eighteenth Amendment) Act (Act X of 2010) were all dismissed upholding the amendment.

Foreign decisions

49. What Mr. Mahmudul Islam has written, in his Constitutional Law of Bangladesh, second edition, at page 46 in paragraph 1.71 is worth quoting, when our AD start breathing in and out with Indian decisions invariably in almost all cases."Use of foreign decisions: In the interpreting a constitution foreign decisions are cited and considered by the Court. This is permissible, but the Federal Court gave the warning –

    … in the last anylysis the decision must be based upon the words of the Constitution with the Court  in interpreting; and since no two constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even where the words and expressions used are the same in both cases; for a word or phrase may take colour from its context and bear different senses accordingly.

    The same caution has been given by the Privy Council while interpreting the Jamaican Constitution –

    In seeking to apply to the interpretation of the Constitution of Jamaica what has been said in particular cases about other constitutions, care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular constitution under consideration and reasoning which depended on what, though not expressed, is nonetheless a necessary implication from the subject-matter and structure of the constitution and the circumstances in which it had been made."

50. Indian constitutional history is quite different from ours, which was adopted on the war-torn earth soaked by blood and sweat of the martyrs of a nation. Every word of our constitution carries a meaning different from that of Indian. Blindly following the Indian constitutional jurisprudence would not help develop our constitution in its truest sense and spirit of our liberation.

51. In Anwar Hossain Chowdhurty v. Bangladesh: (1989) CLC (AD), 02 September 1989 the amendment of article 100 of the Constitution constituting six more permanent seats of the HCD outside Dhaka was challenged. By the same amending act, article 2A was inserted crowning the Republic with a religion, which is,2A. The state religion of the Republic is Islam, but other religions may be practiced in peace and harmony in the Republic.

    Present wordings after the Constitution (Fifteenth Amendment) are as follows:

    [2A. The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions.]

52. In the case, the AD for the first time took judicial notice of the BSD and struck down the amendment. But the AD took no notice of section 1 of the Constitution (Eighth Amendment) Act 1988 which inserted the state religion. The Bar also did not read a word of the said provision of added article 2A. The interest of both the Bar and the Bench so coincided and/or converged to some special interest that making seats of the HCD outside Dhaka demolished the Constitution, while the state religion did nothing to the very fabric of the Constitution, to the martyrs who fell for a secular democracy. I want to stop here today on the Anwar Hossain case with the hope the history would take care of it in due course.

State religion

53. In the meantime, a special bench of thee judges, the HCD by a majority of 2:1 in Maulana Syed Rezaul Haque Chadpuri and others v. Bangladesh Jamaat-e-Islami & others held that

    আপিল বিভাগের উক্ত রায়সমূহের আলোকে সংবিধানের প্রস্তাবনার অন্যতম মূলনীতি 'ধর্মনিরপেক্ষতার নীতি' এবং সংবিধানের অনুচ্ছেদ ৮ ও ১২-এর সাথে আমরা যদি সংবিধানের অনুচ্ছেদ '২ক' বিবেচনা ও বিশ্লেষণ করি তা হলে নিঃসংকোচে বলা যেতে পারে, সংবিধানের ঐ অনুচ্ছেদ, বর্তমান (পঞ্চদশ সংশোধনী মূলে) পূর্ববর্তী ( অষ্টম সংশোধনী মূলে) যা-ই হোক না কেন, যেখানে 'রাষ্ট্রধর্মের' বিধান করা হয়েছে তা সংবিধানের প্রস্তাবনার সাথে অ-সামঞ্জস্যপূর্ণ এবং অ-আপোসযোগ্য। একইভাবে ঐ বিধানটি সংবিধানের দ্বিতীয় ভাগ্যে উল্লেখিত রাষ্ট্র পরিচালনার মূলনীতিমূহ অর্থাৎ অনুচ্ছেদ ৮ ও ১২-এর সাথেও অ-সামঞ্জস্যপূর্ণ।

Reformulation of the Code of Conduct

54. In the lead judgment, the CJB reformulated 39 points Code of the Conduct about which not a word is found in any other concurring opinions dismissing the appeal. The old article 96 has provided only two functions for SJC under clause (4), which are as under:(a) to prescribe a Code of Conduct to be observed by the judges; and

    (b) to inquire into the capacity or conduct of a judge or any other functionary who is not removable from office except in like manner as a judge.

55. Pursuant to the above provisions under clause (4) (a) of old article 96, the SJC headed by the CJB Mr. Latifur Rahman along with Mr. Bimolendu Bikash Roy Chowdhury and Mr. A M Mahmudur Rahman, JJ formulated a 14-pionts Code of Conduct, which was published on 07 May 2000. Reformulation of the Code of Conduct therefore required to be taken in a formal meeting of the SJC with the CJB in the chair along with the next two senior judges of the AD. In the judgment, there is no mention as to how the new Code of Code was reformulated. It is however not a matter for the judgment disposing of an appeal under article 103 (2) (a) of the Constitution. The anxiety of the CJB for the Code of Conduct always deserves appreciation but any action taken under such reformulated Code of Conduct if challenged would fall through for coram non judice. The rush of the CJB to execute the Code of Conduct by holding a meeting of the restored SJC as was published in the Daily Prothom-alo on 09 August 2017 and asking the judges to sign the judgments within six months of delivery is equally appreciable but would be of no avail if challenged.

Restoration of SJC

56. In the lead judgment, clause (2), (3), (4), (5), (6) and (7) of article 96 were restored purportedly under article 104 of the Constitution. It was based on the view that if an amendment to a statute is set aside, original provisions stand restored. This principle as may be applicable in respect of a statue is not applicable in the case of the Constitution. Insertion or alteration or omission of any provisions of the Constitution, can only be done following the procedure laid down under article 142 in the Constitution that is by an Act of Parliament. How the other naked incongruity escaped the notice of all the judges is really surprising. By striking down the Amending Act, if the substituted 96 is gone, how the restoration of clause (2) to (7) who would supply the vacuum created by the absence of clause (1) fixing the age of sixty-seven years for holding the office by a judge and clause (4) for voluntary resignation.

57. In the terms of the Rule issued by HCD and the appeal heard under article 103 (2) (a) of the Constitution on the basis of a certificate, and the declaration of the HCD holding the Amending Act unconstitutional, the AD does not possess any power to take the responsibility upon itself to suo moto write something in the Constitution what is not there. The Constitution has not given any power to the CJB to write or correct the Constitution the way he thinks best. No body under the Constitution except the Parliament can touch the Constitution. This kind of thinking is simply unconstitutional. In the past, extra-constitutional interventions have changed the Constitution beyond recognition. Similarly, the SCB is also not permitted to do anything not authorized by the Constitution. Recent recommendations of an international instrument may help to come out of such perilous consequence.

58. In the conference held on 10 October 2013, co-organized by the Inter-Parliamentary Union, IPU and the Association of the Secretaries General of Parliament, 63 participants from 29 countries took part including 15 parliamentarians and 26 Secretaries General in Geneva. In summary report dated 23 October 2013, one of the recommendations made aimed at managing conflict between parliament and the courts,"Where a law infringes provisions of the Constitution, courts should issue a declaratory order. Where it strikes down the law, it must give reasons and the formulation of a new law/amendment is responsibility of Parliament."⁵

Supreme Court cannot rewrite the Constitution

59. Cropping up this kind of thought in the highest judiciary has a little history, which was never heard in the past. After the judgment of the AD declaring the Constitution (Fifth Amendment) 1979, (Act I of 1979) and the Constitution (Thirteenth Amendment) Act 1996, (Act I of 1996) unconstitutional, a talk was floated that the Parliament got nothing to do and the Government could print the Constitution on the basis of the judgments of the AD. The Parliament was already thinking for further amendment of the Constitution and appointed a Standing Committee with Mrs. Sajeda Chowdhury and Suranjit Sengupata as joint convenors to suggest proposed amendments of the Constitution. I was an ex-officio member of the Committee. After the aforesaid judgments, a move was initiated by the then Law Minister for a resolution to adopt by the Standing Committee asking the Government to print the Constitution on the basis of the aforesaid judgments. Sidetracking the Parliament, the Standing Committee ultimately passed such a resolution and the Government printed a constitution on the basis of aforesaid judgments. Such printing of the Constitution was without an Act of the Parliament was clearly illegal and unconstitutional, which I failed to make the members of the Standing Committee understand. I submitted a 3-page rejoinder to Mrs. Sajeda Chowdhury against the printing of the Constitution by the Government and had to quit. By the Constitution (Fifteenth Amendment) 2011 the Constitution was ultimately amended by an Act of Parliament, and illegality in the printing of the Constitution was finally cured, though belated. What was achieved by such hurried unconstitutional exercise the nation deserves to know.

60. The abdication of the powers by the Parliament that day, has weakened it so much that they cannot say today their mandate under the Constitution that no decision of the AD is binding upon the Parliament, and the present Parliament cannot bind its succeeding Parliament. The judiciary started behaving like a supra-constitutional authority dictating the Parliament. It is better to remember that the people are sovereign who elect the Parliament after a definite interval cannot be made bound by any decision of a court. The Parliament can make any law erasing the effect of the instant judgment of the AD.

Article 147 (2) of the Constitution

61. Lastly, to take shelter under article 147 (2) of the Constitution is nothing but an attempt for a drowning man to catch hold of a straw to survive. Said clause (2) reads,"The remuneration, privileges and other terms and conditions of service of a person holding or acting in any office to which this article applies shall not be varied to the disadvantage of any such person during this term of office."

62. Clause (4) of said article 147 has provided, "the article applies to the offices of– (a) President; (b) Prime Minister; (c) Speaker or Deputy Speaker; (d) Minister, Adviser, Minister of State or Deputy Minister; (e) Judge of the Supreme Court; (f) Comptroller and Auditor-General; Election Commissioner; and Member of a public service commission. How the amended article 96 could have varied the terms and conditions of service of a judge of the Supreme Court only is really an interesting assumption by the highest judiciary and definitely based on figment of imagination. It is already stated that article 96 relates to a statutory proof of conduct or incapacity of a constitutional functionary and has got nothing to do with the terms and conditions of service since no such functionary has got any vested right to a particular form of inquiry. They are only entitled to a fairer process of international standard of opportunity to defend.

What is the way out of the impasse

63. Without any fear of controversy, it must be noted that the judgment of the AD has created the whole mess, the entire nation is now involved expressing their reaction, agitation and grievance this way or that way. The time has come to say for everyone enough is enough! Now, the question is how to come out of this mess. The Bar is divided on the party line, everyone has got his own agenda and interest. There is no guardian seen in the legal community who can lead the nation out of such impasse. It is for the CJB and other senior judges to come forward to pay a heed to the call of the nation. The solution is not difficult to find.

64. When the controversy cropped up from an amendment of the Constitution for introduction of a statutory body for proof of conduct or capacity of a constitutional functionary including a judge, however intricate and critical the situation may be, to find the best practices provided in the law to create an institution impartial, independent and capable to enforce accountability of a constitutional functionary including a judge is not beyond the capacity of the judiciary and the parliament. Initiative will however rest on the Government. In the interest of justice, the judgment may be reviewed any time and rewritten accommodating the concern of the Parliament and the Judiciary.

5. www.ipu.org/Conf-e/129/ipu-asgp-summary.pdf