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Conversation with Asok Kumar Ganguly

The very concept of judgments bringing about wide-ranging social changes presupposes that the courts not only interpret laws, but that in the process of interpretation they also declare laws, which has the effect of making laws. This process of constitutional interpretation, better known in constitutional parlance as judicial review, is inevitable in India, where we have a written Constitution with a chapter on fundamental rights. These features of the Constitution automatically lead to the concept of a limited government.

Our Constitution is based on three fundamentals, which form the core of constitutionalism. They are:

(1) A written Constitution

(2) A chapter on fundamental rights

(3) Limited government

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The concept of a limited government is the obvious corollary of two other fundamental tenets. This concept is based on the postulate that the powers of governmental authorities are limited by law. Neither the executive nor the legislature can act beyond the limits of the law.

Article 73 of the Constitution clearly stipulates that, subject to the Constitution, the executive power of the union shall extend to matters in respect of which Parliament has the power to make laws. Article 162 of the Constitution subjects the executive power of the state to the same limitations. The executive power is thus coterminous with legislative power. That is why it is said in all representative democracies that the government is one of laws and not of men. This principle was first incorporated in the Constitution of Massachusetts, 17801 and was subsequently followed in the celebrated decision in Marbury v. Madison. Chief Justice Marshall, delivering the judgment, expressly said:

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‘The Government of the United States has been emphatically termed a government of laws and not of men’.2 This doctrine introduced in American jurisprudence has been phrased beautifully in the words of Woodrow Wilson: ‘The history of liberty is a history of the limitation of governmental power, not the increase of it.’3

In the Indian context also, any talk of the Dicean concept of omnipotence of Parliament is totally misplaced. The parliamentary system, which is introduced in our Constitution, subjects Parliament to various limitations. One of them is the control exercised by the Constitution over the distribution of legislative power. In view of Article 245 of the Constitution, Part XI thereof provides that Parliament may make laws, subject to ‘the other provisions in the Constitution’. This limitation has many facets and unfolds itself in the form of subject-wise demarcation between the union and the states in the matter of making laws.

This is specifically spelt out in Article 246 and its various sub-articles which talk of three lists—union, concurrent and state. There are other provisions in this part, mandating which law will prevail in case of any repugnancy between union and state laws. And our Constitution, in view of its dominant unitary character, has leaned in favour of the union laws. However, it is clear that in its own field each legislature is supreme. The next limitation on the power is already indicated in Article 245: ‘the other provisions of the Constitution’. The other provisions would obviously include Part III of the Constitution, which is the chapter on fundamental rights.

The expression ‘fundamental right’ was first used in the US Supreme Court by Justice Washington, sitting on circuit, inthe case of Corfield v. Coryell4. The learned judge explained the concept by saying:

[W]e feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental, which belong, of right, to the citizens of all free governments and which have, at all times, been enjoyed by the citizens of the several States which compose this Union…5

But it was not until 1937 that Justice Curdozo of the US Supreme Court formulated for the first time the concept of fundamental rights as a doctrine in Palko v. Connecticut and held that some rights are fundamental as they ‘represent the very essence of a scheme of ordered liberty… principles of justice so rooted in the traditions and conscience of our people as to be marked as fundamental’.6

The framers of the Indian Constitution represented the people of India who were suffering from oppression, deprivation and discrimination for about two centuries of colonial rule. They realized that a chapter on fundamental rights is an essential safeguard against the recurrence of such an experience in the future.

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