The Transformative Constitution

“The idea for this book took shape during a seminar course that I taught at NSLIU, Bengaluru in January, 2015 and the NUJS, Kolkata in June, 2016. This book advances Justice Vivian Bose’s vision of the Constitution, a vision that understood both the historical monument of framing, and the Constitution itself, as fundamentally transformative. But it is a vision that, notwithstanding of the Supreme Court’s recent indications to the contrary [Krishna Kumar, (2017) 3 SCC 1; Kalpana, (2018) 7 SCC 1], remains marginalized in judicial history.”

[Hon’ble Justice Dr. D.Y. Chandrachud in Kalpana, (2018) 7 SCC 1 quoted Albie Sachs. I quoted him too on 16.05.2018.

Justice Vivian Bose = Indian father, English mother, American wife.]

“In E.P. Royappa, (1974) 4 SCC 3 Supreme Court decoupled arbitrariness from reasonable classification, and set it up as a free-standing Article 14 test for testing the validity of Executive Action:

Equality is a dynamic concept with many aspect and dimensions and it cannot be ‘cribbed cabined and confined’ [sic] within traditional and doctrinaire limits… equality is antithetic to arbitrariness.”

[Hon’ble Justice Dr. D.Y. Chandrachud’s son Dr. Abhinav Chandrachud quoted the emboldened phrase, with special interest, on 05.06.2013. I quoted Dr. Abhinav Chandrachud and E.P. Royappa on 13.08.2018; 31.08.2017.]

“The clash between Chief Justice Ray on the one hand and Justices Khanna and Beg on the other set the stage for the concurring opinions of Justices Mathew and Krishna Iyer, which advanced a new and transformative vision of equality [N.M. Thomas, (1976) 2 SCC 310].”

[I quoted N.M. Thomas on 04.12.2018.]

“Far from being an outlier, as it is often proclaimed to be, ADM Jabalpur, (1976) 2 SCC 521 marked a continuity in the Judiciary’s approach to the state of exception: a continuity both with the preventive detention regime and a continuity with the Court’s own emergency powers jurisprudence.

The Supreme Court in ADM Jabalpur endorsed a series of interlocking, interpretive propositions. First, that under the constitutional order, there exists a state of normalcy and a state of exception, the paradigmatic example of which is an Emergency. Second, that the Executive has the sole prerogative of determining when the state of exception ought to replace the default state of normalcy, and what is to happen with respect to citizens’ rights during an Emergency. Third, that the Executive is guided by the principle of salus populi suprema lex. It is not for the Courts to ask either whether the conditions requiring the state of exception to be called really exist or whether the Executive’s actions actually serve public welfare or not. Fourth, that during the state of exception, the Executive can suspend rights, suspend remedies, and be the sole arbiter both for the content of the right and for the remedy. And lastly, that the fact that such a power is vested in the Executive and is capable of abuse is no ground for the power not existing.

ADM Jabalpur endorsed a culture of authority. It authorized a state of affairs where the Political Executive could act without giving reasons or justifications for its actions, either to citizens, or to Courts. Justice Khanna’s Dissent is celebrated. Justice Khanna’s Dissent remains that ineffectual angel vainly beating its luminous wings in the void.”

[While Mathew Arnold’s description of Percy Bysshe Shelley as “a beautiful but ineffectual angel, beating in the void his luminous wings in vain” is inaccurate and foolish, GB’s description of Justice Khanna’s Dissent could not be any closer to truth.

 I quoted ADM Jabalpur on 28.10.2018; 24.08.201707.03.2016. ]

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My Lord, E.P. Royappa, N.M. Thomas, ADM Jabalpur CJI?

 Hon’ble Justice A.N. Ray.

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Rohit De’s book is better than Gautam Bhatia’s book; however, both – expensively priced; magnificently written.

Many footnotes. Innumerable quotations of Hon’ble Justice Dr. D.Y. Chandrachud. Not simple.

Do read, if you have time, patience and interest.

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