Majoritarian Will vis-à-vis Constitutional Supremacy

by Vijay Kumar

The happenings of the past few weeks, particularly indiscriminate ban on slaughter-houses and formation of anti-Romeo squads, ostensibly for insulating the young girls from eve-teasing but, in reality, unleashing crusade against love-Jihad after the formation of the new Government in Uttar Pradesh in the wake of an unprecedented mandate and menacing rise of cow vigilantism, have brought to the fore the inherent tension between the rule of the majority, on the one hand, and the rule of law and supremacy of the Constitution, on the other.

The theory of constitutionalism is anchored in the twin pillars of democracy and the rule of law. Democracy represents rule by the majority and the political will is grounded in the concept of majoritarianism, whereas the rule of law is grounded in reason. This is characterised as ‘will’ and ‘reason’ by Paul Kahn. The fundamental problem of consti-tutionalism, according to Kahn, is to negotiate the relationship between the ‘reason’ and ‘will’. The ‘reason’ is akin to ‘public reasoning’ as conceptualised by John Rawls, and entrenched in recent times by Prof Amartya Sen. This author, while delineating the evolution of constitutionalism in India in the last 60 years, in his book, in 2012, argued that ‘public reasoning’, or articulation of it, alone can sustain constitutional supremacy and, as Prof Upendra Buxi puts it, the adjudicatory leadership of the Supreme Court.

The tension between the will and reason is also not peculiar in India. The same tension is being played out with all its ramifications in the US as exemplified by Trump’s migration policy banning the entry of Muslims from specified countries, and the interrogation of the same by the US Court by granting injunction and consolidating the presidential power, through referendum, by Erdogan in Turkey. The manifestation of same tension between the reason and will has surfaced in India as well, as it is evident from the obdurate refusal on the part of the ruling party to respect the Supreme Court’s interim order on Aadhar, obstructing the memorandum of procedure for appointment of judges in the High Courts and the Supreme Court even after striking down the 99th Amendment and NJAC Bill on the ground of it being annihilative of the independence of the judiciary, a declared basic feature of the Constitution. The most brazen instance of majoritarian will is reflected in the crude and arrogant attempts to treat all the Finance Bills as money bill, and thereby bypass the Rajya Sabha with cynical calculation to avoid sober second reflection where the government is not confident of its majority.

The tension between political will and the rule of law grounded in reason is not new. Right from the beginning, there were conflicts amongst custodians of the Constitution over the land reforms and right to property. The government, in its defence, always relied on the majority it had in Parliament, whereas the Supreme Court asserted its power of judicial review. The Congress Government, in its hegemonic moment, thought that the Directive Principles were superior, whereas the Supreme Court ruled that the fundamental rights enjoyed a higher status. The conflict eventually came to be resolved through the formulation of the doctrine of ‘basic structure’ in the ‘Keshavananda Bharati’ in 1973. The enunciation of the doctrine of ‘basic structure’ was a great seminal contribution to entrench Constitution and culture of constitutionalism. The formulation of the basic structure further marked the transformation of the Constitution from ‘descriptive’ into ‘prescriptive’, in a sense as articulated by the German jurist and judge, Dieter Grimm. The distinction between ‘Constitution’ and the ‘Constitutional Law’ formulated by Carl Schmitt was concretised by the formulation of the theory of basic structure. The evolution of the basic structure was accomplished through the highest level of judicial creativity and craftsmanship and represents an instance of what is termed as “courage, craft and contention” by Prof Upendra Buxi.

Even within the concept of democracy, the rule of majority has a vital, and yet limited, role to play. The rule of majority becomes the basis for the formation of the government and passing of the Bill in the Legislature, though the latter act, in practice as well as in theory, is highly circumscribed by the Constitution. The Bill has to be passed by the majority, and yet, it has to conform to the letter and spirit of the Constitution. The very raison’ d’etre of constitutionalism is that the law passed by the Legislature with full majority represents the lower norm compared to the Constitution, which is grundnorm. Once the constitutional supremacy is acknowledged, the government becomes limited notwithstanding its majority. Once the government is formed, it has to govern in accordance with the law and Constitution. The majority can choose the priest as the Chief Minister, but the governance has to be carried out in accordance with the Constitution and the law in terms of the oath of office and secrecy administered to him.

Though judicial review predates the emergence of the modern Constitution, its existence is crucial for the evolution of constitutionalism. Since the Constitution guarantees the Bill of rights to the citizens, judicial review is the only instrument through which these rights can be asserted and enforced by the independent constitutional court. The crucial distinction, theorised by Carl Schmitt, between the Constitution and constitutional law is reified only through the instrumentality of judicial review. Constitutionalism, in the last and ultimate analysis, is meant to tame the political majority and discipline it and make the decision made by it in tune with the Constitution. Constitutionalism, perforce, entails putting the Bill of rights beyond the vicissitude of the transient political majority of the day. The subversion of the Weimer Constitution and the rise of Hitler and Nazism through the route of political majority, imposition of, in the language of F.S. Nariman, phoney Emergency in 1975 and nullification of the landmark judgment of the Constitution Bench of the Supreme Court in the Shah Bano case by brute majoritarian force should serve as a poignant reminder about the imperative need of interrogating the majoritarian impulse. Majority rule, in the absence of rule of law, according to Dieter Grimm, will eventually lead to destruction of democracy itself.

Once the Constitution guarantees fundamental rights to its citizens, the same must be given its full play and cannot be curtailed on the strength of political will grounded in the hideous concept of majoritarianism. The fundamental rights do confer autonomy in every citizen in respect of his choice pertaining to food, dress, movement, marriage and companionship, so long as it does not encroach upon the liberty of others. The young boys and girls beyond the age of majority have absolute liberty under the Constitution to choose their friend, partner and companion and the state has no right to infringe it. If the most visible and potent agent of the state, the police, cannot invade the autonomy and choice of the individual, it is inconceivable that non-state entities and actors, such as the Hindu Yuva Vahini and other fringe outfits and vigilante groups, can do this without inviting the charge of being criminal. At the heart of the controversy lies the concept of autonomy of individual which is paramount, and must not be allowed to be trumped by majoritarian will.

In fact, it is the duty of the constitutional courts to uphold this autonomy of the individual, lest the prognosis of Justice Hidyatullah, one of the most articulate judges of the Supreme Court, that “the fundamental rights should not be allowed to become plaything in the hands of the majority” becomes the all-pervading and frightening reality with fateful implications for the rule of law and constitutionalism.

The author, a Supreme Court advocate, is the author of The Supreme Court of India: Policy Formulator or Active Protector? He can be contacted at vijayadv62[at]gmail.com