Musings on the Constitution-XLVI Narasimhan Vijayaraghavan

Musings on the Constitution-XLVI
Narasimhan Historic Earl Warren SCOTUS
To continue the research study,
“ A review of the cases reveals, however, that the frequency of citations to The Federalist Papers or the number of papers cited in any one opinion is not necessarily an indication of the significance of The Federalist Papers either to the Justice’s

Historic Earl Warren SCOTUS
To continue the research study,
“ A review of the cases reveals, however, that the frequency of citations to The Federalist Papers or the number of papers cited in any one opinion is not necessarily an indication of the significance of The Federalist Papers either to the Justice’s analysis or to the Court’s ultimate disposition. Given the Earl Warren Court’s attention to the scope of individual liberties rather than the Constitution’s structural provisions, which is the focus of The Federalist Papers, one might intuitively think that The Federalist Papers would be cited less than in the previous period, when much of the Court’s attention was devoted to the conflict between federal authority and state autonomy. Surprisingly, the numbers do not support this. Quite the contrary. The previous period and this one are comparable in terms of the years covered (sixteen years of the Roosevelt Court and fifteen years of the Warren Court). Nevertheless, The Federalist Papers were cited in thirty-five cases by various Justices who sat during the Warren years, a 35 percent increase over the previous period. Likewise, The Federalist Papers appeared in thirty-six opinions during the Warren Years, a 29 percent increase over the previous period.”

Truly astonishing data driven study which is hard to come by in our midst. All the more reason why India owes a lot to the younger crop of the ‘constitutional experts’ who are probably better placed to come up with such studies and entertain us while educating us more. My quarter anna study of the reference to the Federalist Papers a.k.a. Debates before SCOTUS reveals that the first case that referred to Federalist Papers was Calder Vs. Bull (1789).The first forty-six years of United States Supreme Court jurisprudence reveals that references to The Federalist Papers appeared in twelve cases. Only one of those cases, Calder v. Bull, was decided prior to 1800, when John Marshall became the Chief Justice. At the end of an exhaustive effort to define an ex post facto law, Justice Chase ‘noted that Blackstone defined ex post facto laws as Chase himself did and that Blackstone’s opinion is confirmed.., by the author of The Federalist.
The latest case that refers to Federalist seems to be Ramos v. Lousiana (decided on 20.04.2020). This case refers to Federalist No.78. “The Framers of our Constitution understood that the doctrine of stare decisis is part of the “judicial Power” and rooted in Article III of the Constitution. Writing in Federalist 78, Alexander Hamilton emphasized the importance of stare decisis: To “avoid an arbitrary discretion in the courts, it is indispensable” that federal judges “should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them”
Well, the words do not seem addressed to judiciary in US of A. It could well be to our Judiciary. Most recently, we had the spectacle of the top court taking it out on a learned judge of Madras High Court for dissenting with an earlier verdict of a single judge, instead of referring it to a larger bench ,if he chose to ‘dissent’.( By orders dt.2oth June,2020 of the Supreme Court in S.Kasi vs State of TN).Precedents have value.They mean certainty. “And the Constituent Assembly Debates too, are in a sense precedents of value, though not binding,” mused Justice v R Krishna Iyer.

Wandering in many worlds: Justice V R Krishna Iyer

Time to pivot to our Supreme Court. It was inaugurated on 28th Jan, 1950. It was functioning initially from within the Parliament House even as the foundation was laid in 1954. The Supreme Court moved to its present premises in 1958. But between 1937-1950 as Federal Court and since Jan 28th, 1950- 1958 as Supreme Court, it was functioning from within the present Parliament building.
There have been 2200 plus Constitution Bench decisions by the Supreme Court of India .A Constitution Bench of the Supreme Court consists of at least five judges. It is formed to decide a case involving a substantial question on the interpretation of the Constitution of India..The scope of Article 145(3) was decided in Rao Shiva Bahadur Singh v. State of Vidhya Pradesh, which held that only substantial questions involving interpretation of the Constitution must be heard by a Constitution Bench, and other ancillary questions can be referred back to a smaller Bench to decide .

A.K. Gopalan

The first matter to be heard by a Constitution Bench was A.K. Gopalan Nambiar v. State of Madras which dealt with the interpretation of Articles 21 and 22.It was a Habeas Corpus writ petition filed under Art.32 of the Constitution (OP No.13/1950) against preventive detention of an already incarcerated card holding member of the communist party in the Madras Presidency. M K Nambiar, Senior Advocate , father of the 87 year old Attorney general K K Venugopal argued for the detenu.

“He appeared before the Supreme Court of India in the case of A.K. Gopalan v The State of Madras1 before the new Supreme Court. It helped him to make his mark. The submissions which he presented, in favour of an expansive interpretation for Article 21 of the Indian Constitution, did not immediately find favour. However, later they were to be vindicated in the subsequent reasoning of the Supreme Court.”

 MKN was not perceived as a ‘constitutional lawyer’ when he took up the cause. Records reveal that he had a fourfold submission i) the preventive detention measure curtailed the fundament right of ‘movement’- an infringement of Art.19(d) and not within the reasonable restriction contemplated under 19(5) ii) it violated Art.21 for the ‘procedure established by law’ was not  in accordance with ‘due process of law’ as it was not reasonable iii) Art.22 contemplating preventive detention was not an independent Code by itself and as such the safeguards of Arts.19 and 21 (curiously Art.14- right to equality was not pressed into service) had to be telescoped into the procedure and iv) the specific preventive detention law contained a provision prohibiting AK Gopalan from disclosing the ‘grounds upon which he was detained’ and thus making a mockery of his fundamental right under Art.32. It was the first time such a constitutional challenge was mounted and the Debates in the Assembly were brought to bear failingly.

HIRALAL J. KANIA (CJ), SAIYID FAZAL ALI, M. PATANJALI SASTRI, MEHR CHAND MAHAJAN, SUDHI RANJAN DAS, B.K. MUKHERJEA

There were 6 judges on the Bench and by a majority of 5:1, AK Gopalan’s challenge was nixed on 19th May,1950. On the impact of preventive detention on ‘fundamental rights as Art.19- of movement and Art.21- of, life and liberty’- the majority took the ‘simple and straightforward view’ as they put it. It was that ‘preventive detention ’deprived’ the detenu of his fundamental rights and as such there was no ‘residue left to tap into Arts. 19 or 21. Justice Fazal Ali in dissent did not agree, as he was more ‘expansive in his vision as right to life and liberty were too germane to the core or the very living of a being’. The majority however ruled that as the preventive detention law was a ‘lawfully made statute, the procedure established by law was satisfied’. The by-play was on the word ‘law’ as used in Art.21 and that may take and detain us longer elsewhere. So we move on.

(Author is practising advocate in the Madras High Court)