XI Nani Palkhivala Memorial Lecture by Sr Adv Shri Gopal Subramanium

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by

Gopal Subramanium,

Indian Constitution and Modern Governance

 

1.   We are assembled this afternoon in Sastra University to hear the Nanabhoy Ardeshir Palkhivala Memorial Lecture on ‘Indian Constitution and Modern Governance.’ I first congratulate the University for having instituted a Lecture to remember one of the greatest sons of India and a legendary legal luminary, of whose qualities we shall reminisce together.  Indeed, a University is not simply a center for learning and sharing different thoughts, but is also place where we collectively share in silence great memories of masters and their works, and remember, as Hamlet does, “…there are more things in heaven and earth, Horatio, than are dreamt of in your philosophy….”

2.   The occasion to deliver this lecture has engendered many memories, which are personal. My father and mother who were both lawyers knew the late Mr. Palkivala and his wife. I was young boy when I met him and could immediately take to his affable, loving, and above all, an extraordinarily charming disposition. My father later whispered in my ear that he was a one of the greatest lawyers of our time, and that I must look at him as an idol. When my father died prematurely, on the 26^th of February 1972, Nani Palkivala repeatedly enquired form my mother about her welfare, and how I was doing. When I visited Bombay with my parents, and later by myself when I had become a lawyer, I did not have the courage to seek an appointment to meet him until I wrote a personal letter; and thereafter, we met. I remember in that extraordinary meeting with him, I not only discussed a case where we had sought an opinion from him, but also the warmth and affection with which we spoke about a large number of matters. Incidentally, he had just then received a box containing cartons of apple juice from the Chief Minister of Himachal Pradesh and we both sipped on them with childish gleam.

3.   Palkhivala was born on January 16, 1920, educated at the Masters Tutorial High School and later at St. Xavier’s College, Bombay, and took a Master’s Degree in English Literature in 1942.  The appreciation of English Literature, the sublimity of poetry and the grandeur of his vision can be traced to his deep understanding of language, craftsmanship with words, and his incessant need to read more and more of great works.  He studied Law at the Government Law College, Bombay and graduated in 1944 as a First Class student.  In 1944, he joined the chambers of Sir Jamshedji Kanga.  He was admitted to the Original Side of the Bombay High Court in 1946, securing rather characteristically, the first place in every paper. 

4.   It is interesting to note that both Palkhivala and Bijan Mukherjee had something common in them. Both were searching for not only for inspiration, knowledge, idealism, and the texture of law that lay in the language of law, but also to discover its hidden mysteries. 

5.   The questions of human existence were also central to both Bijon Mukherjee and Palkhivala.  They knew that, as Caesar said “…cowards die many times before their deaths, the valiant never taste of death but once of all the wonders that I have heard. It seems to me most strange that men shall fear seeing that death, a necessary end, would come when it will come....”.  Indeed, his realm of enquiry lay like Bijon Mukherjee’s, in the fields of literature, law, and history. For him the great figures of inspiration in history were his honorable friends. He taught law at the Government Law College, Bombay. He was the Tagore Professor of Law at Calcutta University in 1963. He was a member of the First and Second Law Commissions. He also represented India in the World Court in the Kutch-Sindh border dispute between India and Pakistan.

6.   Another extraordinary luminary, M. C. Chagla, remembered Palkhivala in the following words[1]:-

“Palkhivala, to start with, appeared as Kanga’s junior, until he took over himself. But if he did not surpass Kanga, he certainly was his equal.  It was on the very first day when I joined the Bench in 1941 and was sitting in my chamber during lunch interval when my secretary told me that an Advocate by the name of Palkhivala wanted to see me.  I did not know him then nor had I heard of him, but it was my invariable practice to make myself accessible to any lawyer who wanted to come and see me.  I asked my secretary to bring this young man in, and when I looked up I saw standing before me a shy, and diffident, young man.  I was then a member of the Syndicate and all he wanted was a note from me, which would permit him to read in the University library.  I told him that I would be very happy to give him one and I was happy as I found out that young lawyers did not merely read law but were interested in other subjects like literature and history.  I did not know then that Palkhivala would achieve such a rapid and dazzling success at the Bar.  Today he is undoubtedly the most brilliant advocate we have in India.  He has unparalleled command over the language which he uses with mastery and skill and which he combines with vast knowledge of law and great powers of advocacy…”

7.   Even though I have read this paragraph over and over again, I remember more particularly, the speech delivered by Palkhivala on the retirement of Chief Justice Chagla.  It is called ‘The Portrait of a Judge’, by N.A. Palkhivala, and he begins by saying “Justice Cardozo said that the work of a Judge was in one sense enduring and in another sense ephemeral.  What is good in it endures.  What is erroneous is pretty sure to perish.  The good remains the foundation on which new structures will be built, the bad will be rejected and cast off in the laboratory of the years...”.  In his tribute, he speaks about Justice as a Goddess –

“To the Romans, justice was a Goddess whose symbol was a throne that tempests could not shake, a pulse that passion could not stir, eyes that were blind to any feeling or favour or ill-will, and the sword that fell on all offenders with equal certainty and with impartial strength. This Goddess brooded over the Chief Justice’s Court but her stern features had relented into a compassionate smile, and the language of the statute was sometimes subjected to severe strain when one of the parties before the Court was within “the ranker, the tramp of the road, the slave with the sack on his shoulders pricked on with the goad, the man with too weighty a burden, too weary a load...”

8.   I must add that his manners were impeccable.  His address before the Court was marked by courtesy, dignity and gentleness.  His most persuasive arguments were indeed symphonic.  He never had a shrill pitch as modern day lawyers do, nor did he show discourtesy to his opponents at any point of time, and would allow them to have their say. 

9.   He was unconcerned about his physical appearance, would quickly dawn a gown before he entered the Court, and what mattered to him was the cause, and the best possible point that could be put forth before the Court. I remember three great performances of Palkhivala in the Supreme Court.  I was not yet a lawyer at the time, but because of that, the memories are uncolored and resilient.  The greatest of them was his extraordinary exposition in Kesavananda Bharati’s case.[2]  I maintain to this date that his deep understanding of Constitutional Law, and his profound concern that Executive and Legislative encroachments upon rights guaranteed under the Constitution must be resisted and subjected to stringent judicial review, was an object of faith and creed. 

10.   The theory of implied limitation on the power to amend the Constitution was indeed a limitation that arose from the Constitution itself.  In fact, it must be borne in mind that if the Constitution was capable of unqualified amendment, the powerful principles on the basis of which the freedom was itself founded, (the Constitution itself being a charter of freedom), could well have been in jeopardy.

11.   In my view, the judgment of Chief Justice Sikri in Kesavananda Bharati’s case recorded that these cases “raise grave issues,” but characteristically with judicial composure, the Chief Justice said that:-

“But however grave the issues may be, the answer must depend on the interpretation of the words in the Article 368 read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves.”

12.   Itmust be noted that Palkhivala’s contention was the following:-

“On the side of the Petitioners, it is urged that the power of Parliament is much more limited.  The Petitioners say that the Constitution gave the Indian citizens freedoms which were to subsist forever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people.  It is this freedom from tyranny which according to the Petitioners was taken by the impugned Article 31-C which has been inserted by the 25^th Amendment.  If Article 31-C is valid, they say, hereafter Parliament and State Legislatures and not the Constitution will determine how much freedom is good for the citizens.”

13.   ChiefJustice Sikri noted that:-

“I must interpret Article 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes and other relevant circumstances.  No other Constitution in the world is like ours.  No other Constitution combines under its wings such diverse peoples numbering now more than 550 million with different languages and religions and in different stages of economic development into one nation and no other nation is faced with such vast socio-economic problems.”

14.   In my view, the judgment of Chief Justice Sikri is a judgment that has been written with a lot of thought, precision, and careful analysis.  In this very carefully structured judgment, the Chief Justice remarks that:-

“Remembering Homes, J. in Town v. Iyana (245 US 418: 62 LED 672):

“….a world is not crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.””

15.   What is the true purport of a Constitution?  Is it a mere binding social contract or does it contain within it aspirations, which are as fundamental to the existence of human civilization?  Sikri, C.J. rightly referred to the Preamble because the Preamble is in some sense a self-contained document.  The resolution to constitute a country into a Sovereign, Democratic, Republic is indeed a sufficient guarantee of participative Democracy, the absence of State tyranny, and the implicit adherence to the Rule of Law.  Even in respect of an Unwritten Constitution based on Common Law, Lord Woolf in his well-mannered lecture, argued that Parliament could not abolish judicial review:-

“If Parliament did the unthinkable, then I would say that the Courts would also be required to act in a manner which would be without precedent.  Some Judges might choose to do so by saying that it was an irrebuttable presumption that Parliament could never intend such a result.  I myself would consider that where advantages in making it clear.  Then, ultimately, where are even limits of the supremacy of Parliament which it is the Courts inalienable responsibility to identify and uphold.  They are the limits of the most modest dimensions which I believe any democrat would accept.”

16.   It must be noted that Lord Woolf in an extraordinary article called “Droit Public – English Style”[3] noted that:-

“Our Parliamentary democracy is based on the rule of law.  One of the twin principles upon which the rule of law depends is the supremacy of Parliament in its legislative capacity.  The other principle is that the Courts are the final arbiters as to the interpretation and application of the law.  As both Parliament and Courts derive their authority from the rule of law so both are subject to it and cannot act in a manner which involves its repudiation…  The courts will readily accept legislation which controls how it exercises its jurisdiction or which confers or modifies its existing statutory jurisdiction.  I, however, see a distinction between such legislative action and that which seeks to undermine in a fundamental way the rule of law on which our unwritten constitution depends by removing or partially impairing the entire reviewing role of the High Court on judicial review, a role which in its origin, is as ancient as the Common Law, predates are present form of parliamentary democracy and the Bill of Rights….”

17.      It is no wonder Sikri, C.J. looked at the Preamble line by line, and word by word, and said that the basic structure of the Constitution was in some sense reflected in the Preamble just as social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all; fraternity, assuring the dignity of the individual and the unity and integrity of the nation were indeed sufficient components of what would be called the Pillars of a Constitution; the dislodgement of any one them which would result in a mutilation of the Constitution.

18.   Obviously, the preservation of such Pillars necessarily involves the existence of a powerful and independent judiciary, which is alive, not simply to the power of the office, but, more importantly, to the power of the duty in interpreting and preserving the Constitution.  Sikri, C.J. followed Berubari,[4] in holding that:-

“There is no doubt that the declaration made by the people of India in exercise of their sovereign will in the Preamble to the Constitution is, in the words of story, “a key to open the mind of the makers” which may show the genuine purposes for which they make the several provisions in the Constitution; but nevertheless the Preamble is not a part of the Constitution...”

19.   I must say that Sikri, C.J. bravely and correctly held contrary to the view expressed by Wanchoo, J. and Bachawat, J. in Golaknath,[5] that the Court was wrong in holding that the Preamble is not a part of the Constitution unless the Court was thinking of the distinction between the Constitution Statute and the Constitution.  Indeed, Sikri C.J. derived the limitations on the amending power from the Preamble.  Palkhivala’s brilliant argument was that there was a distinction between the Indian Constitution Statute and the Constitution of India.  He urged:-

“This Constitution is the Constitution which follows the Preamble.  It starts with Article 1 and ended originally with the VIII Schedule and now ends with the IX Schedule after the First Amendment Act, 1951.  The way the Preamble is drafted leaves no doubt that what follows or is annexed to the Preamble is the Constitution of India.”

20.   In some way the Lecture to commemorate the memory of Palkhivala is very closely linked to the understanding of the Indian Constitution and Modern Governance.  In fact, for Palkhivala the desiderium was the preservation of the beauty of the Constitution that lay in its moral values.  For him those who were appointed to an office or function under the Constitution were mere designates.  For him, history had provided sufficient evidence of empiricism.  Excesses of governmental power, truncation of fundamental freedoms, attacks of religious minorities, intolerance towards people who are different culturally, apathy towards people with disabilities, disdain towards people with different sexual orientation are all matters which fall within the domain of not simply the subject matter of governance or the lack of governance, but, emanate from a true understanding of the values enshrined in the Constitution.  If the Preamble to the Constitution was any entablature, it was indeed meant to be housed by persons who lived these values, understood them, and realized the entailments of rights in favour of citizens and the duty to uphold these rights when there were situations of conflict.

21.   Returning now to the story of the Constitution and Kesavananda Bharati being the best judgment, and more importantly a judgment that was persuaded by the greatest lawyer India has seen.  After examining the historical material, a very important contention came to be considered by Sikri, C.J.  I am afraid that scholars have not paid the attention that is deserving of this contention.  There was a judgment of the Privy Council in Ranasinghe’s case[6].  In Golaknath’s case, only Subba Rao, C.J. made an allusion to it.  Ceylon was then controlled by the provisions of the “Ceylon Independence Order in Council, 1947” which was the Ceylon Constitution.  Section 7 provided that “there shall be a Parliament of the Island which shall consist of His Majesty, and two Chambers to be known respectively as the Senate and the House of Representatives”. 

22.   Section 29 of the Ceylonese Constitution enabled Parliament to make laws for the Peace, Order and Good Government of the land.  Sub-section (2) of Section 29, however, provided that no such law could prohibit, restrict the free exercise of any religion, make persons of any community or religion liable to disabilities, restrictions to which persons, other communities and religions are not made liable; or confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or alter the Constitution of any religious body except with the consent of the governing authority of that body.  In any case, where a religious body is incorporated by law, no such alteration shall be made except on the request of the governing authority of that body.  Sub-section (3) provided that a law made in contravention of sub-section (2) shall to the extent of such contravention be void.  However, there was an overarching provision contained in sub-section (4) of Section 29 of the Ceylonese Constitution which provided that Parliament could amend or repeal any of the provisions of the order or of any other order for Majesty in Council in its application to the Island.  Palkhivala’s contention was that Section 29(1) corresponded to Articles 245 and 246 while Section 29(4) corresponded to Article 368 of the Constitution and Sections 29(2) and (3) corresponded to Article 13(2) of the Constitution.

23.   A question arose before the Judicial Committee of the Privy Council- There was a law called the Bribery Amendment Act, 1958.  It contained Section 41, which contravened Section 29(4) of the Ceylonese Constitution and was consequently invalid.  Ranasinghe was prosecuted for a bribery offence before a Special Tribunal called the Bribery Tribunal created by the Bribery Amendment Act, 1958.  The Tribunal sentenced Ranasinghe to a term of imprisonment and fine.  The Supreme Court on appeal nullified the conviction and said that the members of the Tribunal were not even validly appointed to the Tribunal.  Section 52 of the Ceylonese Constitution provided for the appointment of a Chief Justice and Puisne Judges of the Supreme Court.  It may also be noticed that the Judicial Committee while interpreting the various provisions of the Ceylonese Constitution found that:-

“Thus there is secured freedom from political control, and it is a punishable offence to attempt directly or indirectly to influence any decision of the Commission...”

24.   The Judicial Committee held that the members of the Tribunal held Judicial Office.  It held that there was a plain conflict between Section 55 of the Constitution and Section 41 of the Bribery Amendment Act.  After examining Section 18, 29(1) and 29(2A), the Judicial Committee held that:-

“There follow B, C and D which set out furtherentrenched religious and racial matters, which shall not be the matter of legislation.  They represent the solemn balance of rights, between the citizens of Ceylon, the fundamental conditions on which inter-se they accepted the Constitution, and these are, therefore, unalterable under the Constitution.”

25.   I must say that Sikri, C.J.’s understanding of Ranasinghe’s case was largely based upon a brilliant analysis of the Ceylonese Constitution, the judgment of the Privy Council and a close parallel drawn by Palkhivala between the requirements of protecting the freedoms of a pluralistic society in India as well as the checks placed upon the Executive Government and the Legislature by the Constitution. But one must understand that the checks which are placed upon the Legislature as well as the Executive are not mere limitations.  These limitations emanate from a primary source namely, the rights granted under the Constitution.  In other words, limitations are not the subject matter of Amendment because limitations are interlinked to the rights that are guaranteed.  If rights cannot be altered, neither can the limitations cannot be done away with, nor can the fetters be diminished in any manner. 

26.   A Constitution is not a mere furniment.  It is indeed a creed of faith.  In Ram Jawaya Kapur[7], the true nature of Parliamentary Democracy was explained by Mukherjee CJ, and the Court held that the President is only a formal or Constitutional head of the Executive while the real executive powers are vested in the Ministers or the Cabinet who in turn are subject to Parliamentary Control.  It must be borne in mind that if we could attach such importance to a pre-historic law found at Mauer to name ‘Heidelberg’, surely the Constitution must be no less than a heilsgeshechte. 

27.   Before continuing to elucidate Palkhivala’s tremendous contribution to the development of Constitutional Law in our country, we must understand two theories to appreciate the essence of the Constitution and Governmental action.  One theory lies in the Theory of ‘Deference’, a theory which Ministers and Prime Ministers in Government usually ask Courts to observe, and usually without a deeper scrutiny of the Constitution.  The Theory of Deference is summed up in a critique of the Constitutional Philosophy of Justice William H. Rehnquist.[8]  A deferential Judge is one who believes that the responsibility of the Court is to respect the judgments of other branches of government.  In fact, many Judges in India have practiced the ‘Theory of Deference’.  Litigants and lawyers dismayed, have failed to understand what great wisdom or supremacy of judgment other branches of government could have if they were called upon to be judicially reviewed. The theory of deference however is in in my view, based on a philosophical perspective and that which is founded upon a lack of psychological conviction in the performance of judicial duties.  Rehnquist’s was the former.  He believed that the role of Courts in relation to the other branches of Government was somewhat restricted.  He believed that representative government is predicated upon the idea that one who feels deeply upon a question as a matter of conscience will seek to find others of the like view or will attempt to persuade others who do not initially share that view.  “Where adherence to the belief becomes sufficiently numerous, he will have the necessary armaments required in a democratic society to press his views upon the elected representatives of the people to have them embodied into positive law….” I must say in fairness to Chief Justice Rehnquist, this is a classical case of democratic participation based upon reason, transparency, discussion, consensus and the final formation of opinion.  No wonder, Rehnquist continued that:-

“Should a person fail to persuade the Legislature, or should he feel that a legislative victory would be insufficient because of its potential for future reversal, he may seek to run the more difficult goblet of amending the Constitution to embody the view that he espouses.  I know no other method compatible with political theory basic to democratic society by which one’s own conscientious belief be translated into positive law and thereby obtain the only general moral imprimatur permissible in a pluralistic democratic society….”

28.   Thus, there is no doubt that the Classical theory embodied by Rehnquist is based upon the subordination of personal opinion to what is called the legitimate democratic process and that decisions which are taken as a part of a culmination of a legitimate democratic process are therefore entitled to respect.  Rehnquist’s commitment to democracy that there are no correct or best answers to all social issues is indicated in the following words:-

“There is no conceivable way in which I can logically demonstrate to you that the judgments of my conscience underlying are superior to the judgments of your conscience and vice-versa.  Many of us necessarily feel strongly and deeply about our own moral judgments, but they remain only personal moral judgments until in some way given the sanction of law.”

29.   Does the Rehnquist approach play an extraordinary degree of deference to the democratic process and is the humility of inability to demonstrate what is a superior choice as clear as that? Are we not to believe that there are some laws that are fundamental?  Are we not to believe that there are some principles that are truly jus cogens?  Are we not to believe that conscience and opinions are not mere subjective laminary experiences but are founded upon what must be considered as a more sustainable principle of Constitutional review that is after all the product of much lautering.  I state this because in some sense this is an ever-continuing debate, and this also brings me to the question of the second kind of ‘Deference’. 

30.   It must also be borne in mind that the underlying principle of deference is a commitment to democratic responsiveness.  Does that mean the judiciary has lesser competence?  Does it mean that all that a Judge does to maintain peace under the Constitution, is to turn away litigants and lawyers, and is in that manner managing the traffic of grievances?  Are citizens, their aspirations, their interrogations, their need to know, their questions, their claim for judicial review, their insistence upon the recognition of rights, the claim that they are marginalized, the claim against disempowerment, the claim to equality, the claim against bias, the claim for fairness, the claim for appropriate consideration matters which must be simply subjected to maceration based upon the Theory of Deference?  Indeed, I find it very difficult to agree with the Originalist Intention or Doctrine that “a mere change in public opinions since the adoption of the Constitution, unaccompanied by a constitutional amendment should not change the meaning of the Constitution...”.

31.   Are we to mean that the scope of Constitutional provisions must necessarily be subjected to evolutionism?  In other words, there are some areas where there can be an ‘evolutionist’ approach.  It is impossible to believe that decisions of today can be judged by the thoughts of framers.  It is impossible to believe that with modern advances made by science, technology, psychology, social sciences, and understanding of history, we must be relegated to intentions of the past.  Therefore, how does the dialogue play itself out?  The dialogue plays itself out in a way that the intention was always to be questioned as little as possible.  While I have extraordinary respect for the logic behind the Rehnquist theory, I must confess that the validity of the doctrine of ‘deference’ must in some sense not depend upon numbers but also a qualitative review of how our democratic institutions work in reality.  Obviously, Courts cannot supervise the working of Legislatures.  At the same time, can the Courts be blind to the realities of the political process? 

32.   While Judges who are ‘restraint interventionists’ are viewed as non-controversial and often rewarded with many insignia of recognition after they demit their judicial office, the challenge lies in the power of judicial interrogation.  I, however, do not believe that the Theory of Deference in India is based upon the classical Rehnquist philosophy at all.  I believe that the theory is based upon a certain degree of ‘self-fear’ that Judges do not have courage to acknowledge.  Indeed, while I view the judiciary as an institution with respect, it would indeed be an overstatement to disregard what one perceives as the causes of excessive deference and non-interventionism even when cases require intervention.  What are those causes? 

33.   In an extraordinary article called “Re-enchantment of Law”[9] is contained a very interesting discussion on attitudes of judicial behavior.  In some sense, it begins with Max Weber’s description of western society as a disenchanted society.  Disenchantment can well be a key to illumination. 

34.   Do Judges in India experience disenchantment?  Do they understand that disenchantment itself can be a creative process?  Do they understand that disenchantment has its facets in multiple areas of personal and social behavior?  Indeed, very little study has been undertaken in India on the performance of Judges as an existential or phenomenological category. How do they see the modern world?  How do they see India?  How do they see the effect of changes in reality and scientific discoveries?  How do they see changes in art?  How do they see changes in scientific discoveries about sexuality?  How do they see radical transformation in religions?  How do they see mental health?  How do they see the issues relating to trafficking of human beings and incessant suffering?  How do they see where the loss of faith and the gains of knowledge take place?

35.   I am not for a moment suggesting that disenchantment must culminate in a state of uncertainty but I am advocating that in order to experience disenchantment, there must lay an anchor which will possibly supply not only the metrification, moderatism and above all the lens to undertake judicial review.  That is to be found in the Constitution.  I must confess that in India we are still not very clear whether we believe in divinely revealed laws as a matter of private faith or that they influence power and legitimacy in judicial office.  Do we believe that Judges are divinely authorized instruments of rendering justice?  Do we believe that Judges can sometimes be viewed no more than an extension of bureaucracy who use a slightly different liturgy to legitimize governmental behavior? 

36.   In some sense, in a recent judgment in Shreya Singhal v. Union of India[10], Justice Nariman described the issues involved as very important, and far reaching questions relatable primarily to the Fundamental Right of Free Speech and Expression guaranteed by Article 19(1)(a) of the Constitution of India.  Section 66A of the Information Technology Act, 2000 came into force with effect from 27^th October 2009.  Section 66A provided that any person who forwarded any information that was grossly offensive or which had menacing character or any information which he knew to be false but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will persistently by making use of such computer resource or a communication device or any electronic mail or electronic message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages was punishable with imprisonment for a term which may extend to 3 years and with fine.  Section 69A enabled the Central Government to issue directions to block for public access to any information through any computer resource. 

37.   In the Statement of Objects and Reasons, it was stated that there was considerable use of computers and internet to new forms of crimes such as “...publishing sexually explicit materials in electronic form,…e-commerce frauds like personation (personating), commonly known as phishing….and offensive messages…hence, penal provisions were required to be included in the Information Technology Act, the Indian Penal Code, the Indian Evidence Act and the Code of Criminal Procedure to prevent such crimes”.  According to the Petitioners, Section 66B to Section 67C, and other Sections of the Indian Penal Code were adequate.  The Petitioners contended that Section 66A infringed the Fundamental Right to free speech.  It was not saved by any one of the eight subjects in Article 19(2), namely, interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, and/or defamation or incitement to an offence. 

38.   The Supreme Court held that when it comes to preserving democracy, liberty of thought and expression are of cardinal value.  The Supreme Court traced the importance of the freedom of expression from the very first judgment in Romesh Thapar v. State of Madras[11].  Later, the decision in Sakal Papers v. Union of India,[12] wherein the paramountcy of speech and expression under a democratic constitution was reiterated.  In Bennett Coleman v. Union of India, the freedom of press was called the “arc of the covenant of democracy” because public criticism was essential to the working of its institutions.  In Kushboo v. Kanniammal[13], the Supreme Court held that the importance of freedom of speech and expression, though not absolute, but was necessary.  But what is significant in the judgment of Justice Nariman is that he underlined why free speech had to be respected.

39.   Justice Holmes in Abrams v. United States[14], clearly referred to the freedom of speech as the market place of ideas.  One must also bear in mind that the theory of the Constitution was that ultimate good desired is better reached by free trade in ideas; that the best test of truth is the power of thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes can be safely carried out.  In Whitney v. California, Brandis, J. said that those who won our independence believed that the final end of the State was to make men free to develop their faculties and that in its Government the deliberate forces should prevail over the arbitrary.  It is important to note that Brandis, J. noted that:-

“…..The greatest menace to freedom is an inert people…. That public discussion is a political duty… and that this should be a fundamental principle of the American Government…”

40.      The US Supreme Court also held that:-

“….It is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.  Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form recognising the occasion tyrannies of governing majorities they amended the Constitution so that free speech and assembly should be guaranteed…”

41.      The second ground in the judgment is about the existence of a reasonable ground to believe that the danger apprehended is imminent.  What is meant by reasonable ground?  In fact, it must be borne in mind that there is a wide difference between advocacy and incitement, preparation and attempt, assembling and conspiracy.

42.      Although one may not necessarily agree with the structure of the reasoning contained in Whitney v. California, it did begin a saved start for considering what is the importance of free speech. 

43.      The Supreme Court held that there are three concepts which are fundamental in understanding the reach of this most basic of human rights – (a) freedom of free speech involved discussion; (b) it involved advocacy; and (c) incitement.  In fact, the Supreme Court believed that it was only when a case of incitement arose that Article 19(2) was attracted.  This conclusion is not entirely supportable.  In any event, the judgment proceeds on the basis that a law to curtail speech or expression that it leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereign and integrity, the security of the State, friendly relationships with foreign States was necessary because the expression ‘public order’ was not mentioned in Article 19(2) of the Constitution.  The Supreme Court noticed the difference between the First Amendment to the US Constitution and Articles 19(1)(a) and 19(2), 19(1)(a). The first difference was the absoluteness of the First Amendment in the US and that Congress could make no law which abridged the freedom of speech.  Second was about the absence of the expression ‘press’ in Article 19(1)(a). It was also taken note of that under the Indian Constitution, reasonable restrictions could be imposed to the freedoms guaranteed under Article 19. 

44.      At the same time, one must bear in mind that the Right of free speech is not absolute at all times and under all circumstances.  I may add that this caveat has often been misused for raising baseless allegations against dissenters.  Indeed, the very ability of the Court to claim the well-defined and narrow limited classes of speech whose prevention and punishment could never pose a constitutional problem is somewhat overstated.  For instance, the “lude” and the “obscene” was described by Justice Murphy in Chaplinsky v. New Hampshire[15], as necessarily capable of being abridged.  The profane, the libellous, the insulting or fighting words which tend to inflict injury or tend to incite an immediate breach of the peace were liable to be abridged. But who judges the nature of such utterances?  Who can ascribe to them values?  Are there common social values by which utterances can be judged?  How can one judge whether the utterance is a step to truth?  How can anybody judge that what would that speech or opinion cause whether it would benefit the reader or not benefit the reader is yet to be determined?  How can one clearly say that all this is outweighed by social interest in order and morality?

45.      Thus, there is some degree of danger in believing absolute propositions of law that seem to admit there is very little doubt and also where the exceptions which are carved out if not read scrupulously and closely might themselves become angels of oppression.  Let us look at the matter further.  In order to be a reasonable restriction, it must be narrowly tailored or narrowly interpreted to abridge or restrict only what is absolutely necessary.  In India, such a law cannot pass muster if it is merely in interest of general public but is necessary to be covered by one of the eight subject matters set out under Article 19(2), a requirement which does not arise in American law. 

46.      The Supreme Court noticed in paragraph 18 that the American judgments had great persuasive value, however, only when it comes to sub-serving the general public interest, there was a difference.  In Kameshwar Prasad v. State of Bihar, the Supreme Court had held that the judgments of the American Courts in interpreting the First Amendment were in fact too general because the nature of police power had not been defined with precision and uniformity.  Thus, the resultant flexibility of the restrictions which could be validly imposed rendered the American decisions inapplicable to and without much use for resolving questions arising under Articles 19(1)(a) or (b) of the Indian Constitution wherein the limitations necessarily had to be definite and precise.  In Indian Express Newspapers Pvt. Ltd. V. Union of India[16], Venkataramiah, J. held that even though the patterns of fundamental rights in the Indian Constitution are different from the pattern of the First Amendment, Articles 19(2) and 19(6) carved out areas in respect of which valid legislation could be made. 

47.       The definition of ‘information’ in this case was inclusive.  But was the Supreme Court right in seeking the definition to define the nature of content and information?  Is it usually the function of a definition to describe what would be offensive content or content which falls within one of the eight designated heads except by way of a substantive provision?  Hence the Supreme Court proceeded on the basis that the lack of specificity of the eight heads in the definition contained in Section 215 itself impaired the right of the public to know.  If information of all kinds could be comprehended within 215, then necessarily, there could be information which could have scientific, literary or artistic value.  It could refer to current events.  It could also be obscene or seditious.  It could also cause annoyance or inconvenience.

48.      According to the Court, the right of the people to know was possible only by way of access to information that necessarily meant that this was through the internet.  To this extent, the Court is completely correct.  But it also goes on to say that such information could be of all kinds.  It was indeed the market place of ideas.  Yet the Court felt that no distinction was made between a mere discussion or advocacy of a particular point of view and what would be annoying, causing inconvenience or grossly offensive.  In other words, the issue is whether Section 66A of the Information Technology Act used words ‘grossly offensive’, ‘menacing character’, ‘information known to be false’, ‘but for the purpose of causing annoyance’, ‘inconvenience’, ‘danger’, ‘obstruction’, ‘insult’, ‘injury’, ‘criminal intimidation’, ‘enmity’, ‘hatred’ or ‘ill-will’, persistently by making use of such computer resource.  The Court held that these were capable of obstructing even a mere discussion or advocacy of a particular point of view.  In other words, one man’s point of view may be in fact inconvenient and grossly offensive.  If Jesus spoke the truth, he was crucified.  History is replete with examples of those who suffered for speaking what they believed in.  But did Article 19(1)(a) protect Sir Thomas More?  Was it intended to protect men who stood up?  Was it a Right in respect of access to information?  Or was it a Right which ranged from the spectrum of free thought, free access, free expression, free communication, free criticism, freedom of opinion and freedom in forms which could either annoy or cause inconvenience or which could in fact lead to continuous irritation, may be viewed as insulting, may be viewed as injurious, may be viewed as despicable. 

49.      The danger which was perceived by the Supreme Court, I think, quite rightly, was that the words were far too many in Section 66A.  Not all of them contained the same meaning.  They were too subjective and they necessarily did not partake of the rigour that was contained in the various designated classes of Article 19(2).  But, it is interesting to note that the Central Government asked for a ‘relaxed standard of reasonableness of restriction’ to be applied.  Indeed, to seek a relaxation in constitutional application is unheard of because Constitutions contemplate fidelity. 

50.      If relaxation were ever permitted, the Constitution itself would be reduced to a rope of sand.  Indeed, it must be said that the Union Government was concerned about – (a) internet having no boundaries; (b) that those who would have access to print media could be literate persons while internet could be accessed by literate and illiterate; (c) just a click was needed to download an objectionable post or video; (d) in cases of television serials and movies, there was a permitted pre-censorship but no such pre-censorship was available in respect of internet communication; (e) in case of print media or medium of television or films, whatever is truly recorded can only be published, while in the case of internet, morphing of images, change of voices could create serious potential social disorders; (f) rumours could be spread by virtue of the internet.  Thus it was contended by the Union that print media, television and films could not invade privacy of unwilling persons.  It is indeed ironic that if anyone were to believe that print media, television and films could not in fact invade privacy.  It is not unknown that Princess Diana, was being chased by print media, when she met with an accident. Obviously, that print media was certainly seeking to invade the privacy of persons who were unwilling to meet with them.  It was argued that in case of  the internet, it is very easy to invade upon the privacy of any individual and violate his rights under Article 21 of the Constitution of India. 

51.      It was further argued that newspapers, magazines, televisions and movies are somewhat ‘pure’; they are ‘virtuous’; their ability to do injustice is very ‘limited’; they cannot invade ‘dignity of people’; they cannot ‘harass’; they cannot ‘contain sexual harassment’; they cannot outrage the modesty of anyone; they cannot ‘use unacceptable filthy language’; they cannot avow communal frenzy’; they cannot lead to ‘serious social disorder’.  Indeed, are these assumptions correct?  Indeed, can it be said that print media enjoys a higher level of virtue and respect for fundamental freedoms of individuals and protects people against being hurt or outraged? 

52.      The next argument that for television one needs at least a room, whereas in the case of an internet, the offence can be committed at any place at the time of his choice and maintaining his anonymity could not even be stated as a tenable distinction.  Thus, the Government advocated an institutionalized approach- an expression full of pejorative connotation and perhaps full of subversive meanings.  It was suggested that there were industry specific ethical norms of self-conduct.  One only knows from reading of newspapers how false allegations, and scurrilous materials are published and broadcast at the behest of vested interest do well.  To suggest that there were ‘in-house’ institutionalized policies which obviated any possibility of the medium being abused, is again a complete distortion of the true real world in which print media subsists.  However, the use of internet was entirely stated to be individualistic.

53.      A further argument was made that inherent infrastructural and logistical constraints reduced the ability of print media and cinematograph to abuse freedom of expression.  One is not clear what those inherent infrastructural and logistical constraints are, as a consequence of which newspapers or cinematograph films could not abuse freedom.  In so many newspapers and films, expressions of common abuse are noticed, seen and at many places they are used as adjectives of art.  Thus, the Government pleaded the test of intelligible differentia.  I am glad to say the Supreme Court rejected these submissions.  It is the over-inclusiveness of Section 66A which could pose a danger to free speech. It was this that persuaded the Court to strike it down.  It must be commended that the Supreme Court quoted a special line from Papachristou v. Jacksonville[17], that living under a Rule of Law entails various suppositions, one of which is that “all persons are entitled to be informed as to what the State commands or forbids.”   But is it merely the lack of fair notice of what is prohibited or lack of standard that leads to discriminatory legislation.  Is it the lack of clarity about what facts must be proved?  In my view, there was a more fundamental test and that test was not that the words were unclear but, that the words were themselves incapable of objective determination.  When words are incapable of objective determination, the primary pre-condition under Article 19(2) would clearly be unsatisfied.  This judgment of the Supreme Court has definitely contributed without doubt to the public confidence in an independent judiciary. 

54.        How does one determine when an idea is not in public interest?  Is it the Court and does the Court actually have such vast residual of knowledge that it can easily come to the conclusion that something is outside the purview of public interest?  Strangely, public interest, social order and morality have become expressions seeking compliance.  They are expressions that compel those who would possibly forge other pathways of understanding and perception to be on the safer side of the road.  To be on the right side of order and morality is one of the most comforting feelings induced in any society but even in civilized democracies.  That level of comfort may be the first sworn song of true enlightenment and may well be left where the ideas were only about a market.

55.      I am aware that Common Law has its origins and customs, which have evolved into rules of conduct and a process of their enforcement.  There is no doubt that the complex judicial system that has evolved over centuries in England, have in fact migrated to other parts of the world.  Past decisions of persuasive value are sometimes a binding authority.  Common Law is Judge made law.  However, in a perceptive comment made by M.N. Venkatachaliah, CJ, there is an issue:  “is the continuing development an integral part of the constitutional function of the judiciary?” 

56.      It is noticed that the Common Law is a living system of law “reacting to new events and new ideals and so capable of providing citizens with the system of practical justice relevant to the times in which they live”[18].  I refer to this because there is a great recognition of the principle that rigidity in the operation of a legal system, as Venkatachaliah, CJ describes so perceptively, it “...is a sign of weakness, not strength and it deprives the system of necessary elasticity… The genius of Common Law lies in its capacity for evolution in adaptability, as well as its resilience to cope with the demands of the times.  This may be said to represent the spirit of the Common Law...” I quote this with great admiration because very few Judges have merged Common Law and Constitutional Law as reflective of interpretative approaches. 

57.      Chief Justice Venkatachaliah, one of the greatest Chief Justices of India, apart from extraordinary scholarship, had thought out the activity of adjudication as a complex process which must bear fidelity to the Constitution on the one hand, and must also bear somewhat equal fidelity into contemporaneity of circumstances and the human condition on the other.  Indeed, it must be borne in mind that the idea of “inherent jurisdiction of the Court,” again very carefully perceived by Chief Justice Venkatachaliah, which does not exist in the continental systems, led him to believe that the inherent jurisdiction was not derived by statute or rule but from the very nature of the Court as a Court of Law.  Indeed, as he rightly points out, “inherent jurisdiction is the foundation on which the edifice of Common Law is built”.  He also noticed that “the power of the superior Courts as Courts of Record to punish for contempt flowed from that concept”. 

58.      The judicial institution has great responsibility.  The attempt to not even take on board a challenge by either terming the petition as premature or to leave it in a “no-man’s land” of executive non-enforcement is a sad reflection on how the legal profession has undermined its own capacity to expect from the institution of the Supreme Court standards strictly analogous to that of Palkhivala and Sikri, CJ in Keshavananda Bharati. 

59.      I need to add that Upendra Baxi’s idea[19] that the Constitution is a governance text/ right’s text/ justice text is perhaps the best definition I have read so far.  He refers to what are three interlocking plaints, namely, C1, C2 and C3.  C1 stands for the word as the world where we have the initially formulated historic Constitutional text.  C2 represents Constitutional hermeneutics, the site of what is understood as Constitutional interpretation or constitutional law.  C3 signifies constitutionalism as a set of ideological sites that provide (as he laconically and characteristically says) justification and with occasional sarcasm mystification for constitutional theory and practice.  Indeed, Baxi notes C1, C2 and C3 put together may often constitute the idea but may work in a complex and contradictory manner.  It is no wonder, Edward Said raised concerns about what he called “the authority of authority”. 

60.      I may add that Baxi brings about the distinctive discourses of constitutionalism.  He refers to Ken Karst who believes that Constitution is Constitutional Law i.e. Constitutional hermeneutics (C2) and is not concerned with historical Constitutions (C1) or Constitutionalism (C3).  Constitutionalism, according to Karst, “is an ideology in the sense of abstract beliefs would be too flimsy a material… too thin a glue...” Karst regards the actual Constitutional text and the interpretations of the Supreme Court as themselves the best proof of constitutionalism.  He says that these interpretations of the Supreme Court are indeed behavioral illustrations of the civic culture in action, and they also contribute to civic culture’s meanings. 

61.      What was C1? Of course, in the United States, there were various State Constitutions.  They were an integral part of the Corpus known as the American Constitution.  Are State Constitutions irrelevant?  Is the Government of India Act, 1935 and 1999 irrelevant?  If bonds of nationhood have to be understood, it is important to bear in mind that historical material that guaranteed participative democracy at all points of time effectively, of course, must be emphasized.  But most importantly, can there be a denial of ideology?  Can it be argued that law itself is ideology?  In fact, many Governments of varying dispensations have actually viewed law not even as ideology but as an unnecessary fence which only needed a pair of strong clippers and preferably that they be in the hands of strong-handed Judges. 

62.      Of late, there is a debunking of the various social philosophies that came to be a part of India since independence.  India believed in socialism and today socialism is viewed as a somewhat dirty word and one would not be surprised if it could be termed as ‘abusus’.[20]  In fact, one can see with what unfailing regularity the number of articles which are written on important social issues by perceived socialists are even published.  From steps taken to liberalise the economy in 1991, it seems that the Constitution itself has acquired a different meaning.  Amartya Sen’s sensitivity to injustices of class, gender and ethnicity has made him write with passion and precision about the pains of social asymmetry and disadvantage.He warnsus against the temptation to see globalization as a "one-sided movement that simply reflects an asymmetry of power which needs to be resisted." 

63.      To the great credit of a young National Law School lawyer it was argued vehemently that the meaning of the word ‘socialist’ and its retention in the Preamble was a farce.  In fact, one wonders how many people have paid attention to an article called “Food Insecurity Acts” written by Brinda Karat which mercifully found a place in The Hindu, but was sufficiently positioned on the right side so that very few would read it and if anyone did, would not be horrified.  The article was on an issue relating to severe underestimates relating to “procurement and a claim that only 6% of old farmers have benefited from the minimum support price through sale of food grains”.  She raised the point – is 6% of farmers a sensational figure and also points out that is it not true that large number of farmers are even deprived of the benefits of MSP?  While not commenting upon the merits of her article, there is an element of serious concern from the standpoint of constitutionalism in respect of those multitudes who walk barefooted in far stretches of land and find that nature has hardened them to live another day.  It must be remembered, as Noam Chomsky does, that “…changes and progress are very rarely gifts from above. They come out of struggles from below.”

64.      As once described in poetic verse by an awe-inspiring lawyer and a shrouded bard:-

“I live because I am accident of nature,

I live because I am with nature,

I grow because something in me makes me grow,

I look at some people and wonder why are they laughing? 

I turn back and see my mother crying,

I walk further, a stone hurts my hardened skin,

I only admire the setting Sun because it’s an orange colour,

The colour which seems to be most soothing, the most promising, It’s a colour which entrances me in my lack of engagement with reality,

I have no composes,

I have limited understanding and can’t often add two and two right,

Just as I close my eyes for a brief moment I hear again, a boy who is a neighbor is beckoning wildly to me to return,

I see that he is furiously waving his hand,

I don’t know what can go wrong because I never knew what went right,

I reach home, and I discover that my father is lying on the barewooden floor,

My mother is looking at him impassively, helplessly,

She looks at me, I am unable to run to her

Either to offer comfort nor does she seek my hand for help

The friend who beckoned me tells me my mother prevent my father from committing suicide,

I don’t know what is suicide,

I don’t know what my mother did, I don’t know what my father is to do,

I am unaware, I live, I continue

And I live truly dumb and insensate but as I try to sleep in the night I strangely see the waxing moon making different shapes,

As if wanting to talk to me, does someone really want to talked to me,

 I asked myself, if the waxing moon seems to want to talk to me,

I smile at the moon, I think the moon too has smiled at me, I fall off to sleep.”

65.      A Constitution, a legal profession, and a Government, which can make sure that they can even hear and understand that the suffering of many people whatever be their disability, is worth a C1 + C2 + C3 logic of discourse.  The discourse otherwise will become an act of luxury.  We need to justify our existence, our profession and most importantly to assemble today to know that our pluralist society where people can be marginalized for extraneous reasons must have overwhelming constitutional protection. 

66.      I have never felt more ashamed than to have seen in the front page of The Hindu that a lawyer in Madurai who enjoys a completely splendid reputation was rejected because he offered donations to Madrasas for education of children.[21]  Hence, Judges and lawyers need to step out of the multiplicity of ingenious rationalizations, and learn from Nani Palkhivala’s yearly retreats of silence at the Aurobindo Ashram and his deep engagement with his inner self and soul.

67.      I earlier mentioned that I remember three great performances of Mr Palkhivala at the Supreme Court, before elucidating upon his immense contribution to preserving the India’s democratic ethos in the Keshavananda Bharti case. I was also witness to his appearances the famous cases of State of UP v. Raj Narayan, AIR 1975 SC 865 and the attempt of the Government to overturn the view of the majority in the Keshavnanda Bharti case in the November of 1975. His performance in the former especially, was the most outstanding I have ever seen.  The manner in which he argued from propositions that was written by hand was enthralling.  Just as Nani Palkhivala attempted to discover his soul, we the lawyers, the Judges and law students must not be simply fascinated at the materiality of existence because the Constitution is not about materiality.  It does guarantee materiality in the safety of materiality of the physical body, the space and the surroundings but more importantly it guarantees that ineffable, indestructible galaxies of shining stars of ideas and possibilities which move sometimes as the glittering neurons in our brain. 

68.      Nani Palkhivala passed away in the year 2002. Many of us did not visit him because we knew that he was a man of great privacy and we respected his privacy.  He faded away as gently as he could.  He knew the terminality of life.  That is why the Constitution recognizes the ephemerality of human existence and social order of any meaning must always mean a composite social order where rights and freedoms can be preserved and where individuals do not have to align with power and authority to seek the added element of security and safety.  To live with the Constitution and by the Constitution must be a sufficient safeguard, but that is the duty of Governance, which I must now say with clarity in today’s world lies to a greater degree with the judiciary.