CAN Foundation hosts webinar on "Parliament & The Judiciary on Constitutional Amendments'

The Dharmashastra National Law University, Jabalpur (DNLU) in association with the Confederation of Alumni for National Law Universities Foundation (CAN Foundation), recently hosted an online lecture on the topic “Parliament & The Judiciary on Constitutional Amendments: Shifting Paradigms.”

The lecture was held on February 7. Justice GS Sandhawalia, Judge, Punjab & Haryana High Court and Justice Ujjal Bhuyan, Judge, Bombay High Court were keynote speakers along with Vikramjit Banerjee, Additional Solicitor General.

Prof. Balraj Chauhan welcomed all the guests and panelists for the day.

Justice Sandhawalia termed the discussion as an important one pertaining to the shift of the Supreme Court and its views.

He stated that judicial appointments were not initially dictated by the Executive. A change came when Justice SR Das was set to demit office. A letter was written by the then President to the Home Minister that there was no judge from Tamil Nadu in the Supreme Court.

The member of Law Commission then sent a note against such factors and said that the High Courts should not become a site of a communal museum in the name of representations of a caste or community, at the cost of the efficiency and merit of the Courts. The policy of supersession and transfers was also initiated to support the politically motivated ideals.

Justice Sandhawalia was of the opinion that the tussle between parliament and judiciary can be seen after taking a look at the amendments and new legislations. He referred to Pandit Nehru’s Constituent Assembly Debates on regarding the Article 368 of the Constitution. Our Constitution strikes a balance between flexibility and rigidity, he said.

Justice Bhuyan began his address by appreciating Justice Sandhawalia’s opinion on the international perspective of the present topic. His address revolved around landmark constitutional law cases related to the Constitutional amendments like Golaknath v. State of Punjab, Kesavananda Bharati v. UOI, and Indira Nehru Gandhi v. Raj Narain. Over the course of his address, Justice Bhuyan elucidated upon the Supreme Court’s stance on the Constitutional Amendment over the years.

At the very outset, he delved into the case of Golaknath, and how it sowed the seeds for a whole array of cases related to constitutional amendments/ His address slowly progressed toward other landmark cases as well. He recalled the parliament’s attempt to circumvent the Golaknath Case by amending Article 368 and bestowing broad powers on the Parliament to amend the Constitution.

While referring to Kesavananda Bharati, he laid particular emphasis on the word 'amend'. He reiterated the proposition that the Constitution cannot be changed or destroyed so as to lose its identity. Justice Bhuyan opined that the word amendment postulates that the Constitution should survive without loss of its identity despite the change and should continue even though it has been subjected to alterations.

Additional Solicitor General of India, Vikramjit Banerjee, began his address by referring to two models of Constitutionalism - the British model and the Roman Model.

The Roman Model is extremely old. It has always believed in democracy, checks and balances on powers, very defined rights of institutions and people. On the other hand, the only non-Roman influenced democracy or democratic Constitutional system which arose in western Europe was the British system.

The British approached Constitutionalism differently because they traced the conception of democracy to Gothic bequest.

Posited against this was what is called the Norman Yoke. The Gothic bequest would have the Anglo Saxon conception of democracy and Norman Yoke is what is considered as having come from Normans who came from Europe and conquered Britain. There was a continuous move against Norman Yoke. So, at the conception of a written Constitution, power concentration, strict division of powers, there was a reluctance to adopt it. It was repeated again and again that we (British) are different and we have our own method of doing things, Banerjee said.

He also spoke about reluctance of the Supreme Court for the first 20 years to interfere with powers of Parliament because judges interpreted the Constitution as a Constitution of the British model.

"Under the British model, the Constitution would be a very important Act, no doubt. But it would be one in a series of Acts which govern the State. And there would be other Acts besides the Constitution which would be part of the entire process of Constitutional law. It would not assume that the State is a creation of the Constitution. It would treat the Constitution as a path controlling mechanism of the powers of the State. In Indian history, the Government of India Act, 1935 is in many ways the basis of power-sharing arrangement which is underlying the Indian Constitution in a major way," he said.

Finally, he opined that the British Constitutional law has always historically stressed that there should be an amount of input from the Executive in the appointment of Judges. It has not stopped the Judges from being fair and deciding against the government, he added.

The Session concluded with Vote of Thanks delivered by Ankit Swarup, EC Member, CAN Foundation.