26 January 2016

Republic Day

Disclaimer : I am not a political scientist. Nor a legal expert.

An earlier version of this post appeared in January 2013.

What does a Republic mean?

I remember studying it in school but don't seem to remember much. The current NCERT Class 9 textbook defines a Republic as "The head of the state is an elected person and not a hereditary position."

The concept of a Republic came into inception as an alternative to a monarchy. The business of running a country/nation/territory cannot be vested with a particular individual (or family) and it cannot be passed down from one generation to another.

Some internet pages attribute the following words to Justice Hidayatullah - "A Republic is a State in which the supreme power rests in the final analysis with the people and not with a single individual like a king or the like."

A Republic usually has a Head of State. She is either directly elected or indirectly elected (as in the case of India) and in some cases she is nominated to the post; nevertheless people usually have a say in her appointment and the appointment is not by the virtue of royal blood. The concept of adult suffrage (that is every adult has a right to vote) is complementary to the idea of a Republic.

So how is a Democracy different from a Republic? In a Democracy, the rule of the majority is supreme. Everyone votes for their representative and those representatives collectively decide the law and policy of the land. Thus, the majority can decide to kill a minority or decide to call their nation/country/territory as the nation/country/territory of only a specific community or religion or race.
However, in a Democratic Republic, the elected representatives cannot make any and every law or policy. They must function within the ambit of "Rule of Law." And, this is the most striking feature of a Republic.

According to "Rule of Law", the law is supreme and no one (including the State) is above it.  The Constitution of India sets out the supreme law of the country. It provides for the separation of powers between the various organs of the State (i.e.: Legislature, Executive & Judiciary) and sets out the limits within which they must act. An act that goes beyond these limits is ultra vires and stands void. Thus, if the legislature enacts a law which it is not competent to make, then such enactment is unconstitutional and will have to go.

There is another ground on which a law (other than a constitutional amendment) can be challenged and that is, if it violates the fundamental rights. Thus, the laws of the legislature and acts of the executive must not violate the fundamental rights of the people; and if they do, then those acts are bad in law and can be challenged. But the remedy isn't limited to the declaration that the law/act is unconstitutional. In appropriate cases, the Courts have awarded compensation for the violation of fundamental rights by the State (See Bhim Singh v. State of J&K).

An additional ground is available when it comes to constitutional amendments. The Parliament is free to amend any portion of the Constitution (including the Preamble). However, any such amendment must not alter the basic structure of the Constitution.  In Keshavananda Bharti v. Union of India, C.J. Sikri remarked that "The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same."

What constitutes as basic structure is a grey area. Over the years, the Supreme Court has held that secularism, independence of judiciary, supremacy of the constitution, federalism, democratic character, separation of powers etc. form the basic structure of the Constitution. Any amendment which alters this structure must go away. Recently, the Supreme Court set aside the 99th Constitutional Amendment regarding the National Judicial Appointments Commission, as according to the Court, the amendment violated the principle of independence of the judiciary.

(I am not sure if a legislative enactment can be challenged on the grounds of basic structure. This idea was rejected in Union of India v. R. Gandhi, however I remember the issue being raised again in the recent NJAC proceedings. I do not know what came of that.)

Thus, the Constitution of India holds the reigns on the Executive & Legislature. It assigns them powers and also limits the exercise of those powers. It provides for a Judiciary to check the actions of the Executive & Legislature.

(What remains to be seen is who checks the actions of the Judiciary? While the Parliament has powers to remove judges, it's rarely exercised. Any action by the Parliament to check the Judiciary maybe politically motivated and maybe seen as violating independence of judiciary. Thus, the check on the Judiciary is only the Constitution, the guardian and interpreter of which is the Judiciary itself.)

But, what about the people? Isn't the Legislature a representation of the will of the people? By setting aside a legislation aren't we setting aside the will of the people?

Yes. Note the following remarks of the Supreme Court in B. R. Kapur v. State of Tamil Nadu:

"In other words, the people of the country, the organs of the Government, legislature, executive and judiciary are all bound by the Constitution which Hon. Justice Bhagwati, J. describes in  Minerva Mills case (1980 (3) Supreme Court Cases, 625) to be  suprema lex or the paramount law of the land  and nobody is above or beyond the Constitution.  When Court has been ascribed the duty of interpreting the Constitution and when Court finds that manifestly there is an unauthorised exercise of power under the Constitution, it would be the solemn duty of the Court to intervene.  The doctrine of legislative supermacy distinguishes the United Kingdom from those countries in which they have a written constitution, like India, which imposes limits upon the legislature and entrust the ordinary courts or a constitutional court with the function of deciding whether the acts of the legislature are in accordance with the Constitution." (J. Pattanaik)

"The Constitution prevails over the will of the people as expressed through the majority party. The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution." (J. Brijesh Kumar)

And that's what it truly means to be a Republic. The Constitution stands supreme. Not the will of the people, not the Government, not the law makers, not the judiciary and not the corporates.

Of course, the implementation of the Constitution is a separate analysis. The Constitutional promises are violated everyday and in that sense, the Constitution is meaningless; no matter how salutary its provisions. We still have a long way to go when it comes to making the provisions of the Constitution a reality.

However, if assigning blame I would not limit it to the State. It would be a chutzpah to say that WE THE PEOPLE OF INDIA gave ourselves this Constitution and then assigned all the responsibility to the State. Surely, we are to blame.

A page from the NCERT textbook ' Democratic Politics - I '

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