Last week, we celebrated Constitution Day or Samvidhan Divas. It was on November 26, 1949, that the final version of the Constitution was approved by the Constituent Assembly. The Assembly then adjourned to January 26, 1950, when the Constitution came into force.
In the initial years, the contribution of several High Courts to the development of the constitutional law was remarkable. Several judgments of the High Courts of Bombay, Calcutta, Allahabad, Madras, amongst others, interpreted the key provisions of the Constitution, particularly Part III, which covers fundamental rights. Over the last three decades, the number of reported judgments of the Supreme Court has increased significantly. The unfortunate consequence is that several important High Court judgments on constitutional law remain unnoticed. And worse still is that landmark High Court rulings in the first decade of our Constitution have been forgotten.
The present article highlights the contribution of the Madras High Court in the nascent years of the Indian Constitution. For the sake of brevity, reference is made to a few cases that were important to the development of constitutional law.
In V.G. Row v. State of Tamil Nadu, AIR 1951 Mad 147, the Full Bench struck down a notification that declared the People’s Education Society as unlawful association. Mr. Row was a barrister and the founder of a leading firm that specialised in labour law. The other dangerous feature of the notification was that members of an association that is declared unlawful, could also suffer penal consequences. When the Advocate-General argued that the executive had the right to curtail personal liberty and had full discretion to ban associations, Justice Viswanatha Sastri remarked that such arguments had not been heard since the time of the Magna Carta! The notification was struck down as violative of Article 19(1)(c). The judgement has an excellent discussion on Article 14 and 19. This decision was later upheld in State of Tamil Nadu v. V.G. Row, AIR 1951 SC 196.
A little before the V.G. Row judgement, was another Full Bench decision in Champakam Dorairajan v. State of Madras AIR 1951 Mad 120. The Full Bench struck down the famous Communal Government Order - Communal G.O. - which reserved seats based on caste and religion. It set out a quota for Brahmins, Non-Brahmins, Backward Hindu Communities, Harijans, Anglo-Indians and Christians, and Muslims. The Full Bench declared the G.O. unconstitutional on the ground that it violated Articles 15(1) and 29(2) which prohibited discrimination on grounds, inter alia, of religion, race, caste, sex and place of birth. This judgment was affirmed by the Supreme Corut in State of Madras v. Champakam Dorairajan AIR 1951 SC 226. This quickly led to the insertion of Article 15(4) by the First Amendment that enabled the State to make such provisions for advancement of socially and educationally backward classes and for Scheduled Castes and Scheduled Tribes. Article 15(4) was thus the basis for the entire reservation system.
Both judgments are remarkable for the felicity of expression and masterly command over the English language. Noting the difference between the Indian and American constitutions and the need not to follow the American decisions in a routine manner, Justice Sastri observed:
“It is for this reason, and not out of any disrespect to the arguments of learned Counsel or the very eminent American Judges whose decisions were cited before us, that I have made a somewhat parsimonious use of the embarrassing wealth of American precedents.”
A few years later, the Madras High Court in Gannon Dunkerly v. State of Madras AIR 1954 Mad 1130, laid down an important principle on the power of the State Legislature to levy taxes and duties under specific entries in the Seventh Schedule. Entry 54 of List-II permitted levy of sales tax on the sale or purchase of goods. The High Court struck down an amendment to the Madras General Sales Tax Act which included works contracts in the definition of “sale”. The High Court held that a State has the power to levy tax only on “sale”; it cannot expand its taxing power by including works contracts in this definition. A works contract was not a sale as understood in law. This judgment was later affirmed by a landmark ruling of the Supreme Court in State of Madras v. Gannon Dunkerley Ltd. AIR 1958 SC 560. Venkatarama Aiyar J. affirmed the High Court ruling and laid down important principles that are still useful in interpreting the legislative entries, particularly in List II.
During the Emergency, the validity of a State law could be considered only by a bench of five judges. Accordingly, in M. Karunanidhi v Union of India AIR 1977 Mad 310, a five-judge bench considered whether the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 was repugnant to the Prevention of Corruption Act and the Criminal Procedure Code which were central laws. The High Court carefully discussed the scope of Articles 254(1) and 254(2). It held that there was no repugnancy and the petition of the former Chief Minister was rejected. In M. Karunanidhi v. Union of India AIR 1979 SC 898, the High Court’s decision was affirmed and the Supreme Court went on to lay down important principles to determine repugnancy under Articles 254(1) and 254(2).
It is hoped that the contribution of other High Courts during the early years of our Constitution are analysed and documented. Apart from the earlier judgments, it is also necessary that important High Court judgments on the interpretation of constitutional provisions are highlighted from time to time.
Arvind P Datar is a Senior Advocate.