Forum Home

Judges and Constitutions

MEGASTHENES reviews the historical role of judges in the making of constitutions.

Photo: TETRA IMAGES/GETTY IMAGES

Charles Evans Hughes very nearly became President of the United States. In the 1916 presidential elections, which he was widely expected to win, he narrowly lost to Woodrow Wilson. Prior to that, and also later, his was a distinguished life of public service. He served successively as Governor of New York, Associate Justice of the Supreme Court, Secretary of State, Judge of the Permanent Court of International Justice, and lastly as Chief Justice of the United States. In a survey conducted by two Law Professors in 1971, 45 academic experts were polled to rank US Supreme Court Justices of the past. Hughes was one of only 12 who were placed in the category of "great". Ten years later, a survey of 50 diplomatic historians adjudged Hughes to be one of the six best Secretaries of State in US history. In a speech as Governor of New York in 1907, Hughes had asserted: "We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution". It was one of the clearest articulations of the doctrine of judicial review.

Judicial review has only limited application in Britain, where the Constitution is unwritten and Parliament sovereign. Primary legislation thus cannot be challenged in British courts. Judicial review would only apply to delegated legislation and administrative decisions. Legislation, of course, needs to conform to the European Convention on Human Rights and European Union law in general.

The US Constitution does not explicitly provide for judicial review. In the early years of the federation, there was debate as to the authority that would decide, if and when Congress exceeded its delegated powers. Alexander Hamilton favoured judicial review, while Jefferson was of the view that it was for the constituent states to decide when the Constitution had been infringed, and also the "mode and measure of redress". The issue was resolved in 1803 in the Marbury vs. Madison case, when the Supreme Court affirmed the principle of judicial review. Chief Justice Marshall asserted unequivocally that "a law repugnant to the constitution is void" and that it was "emphatically the province and duty of the judicial department to say what the law is". The Supreme Court's right to rule on the constitutionality of congressional legislation and to act as the final authority on the meaning of the Constitution was based on Art. III, Section 2 of the Constitution. The Section confers on the federal courts the right to handle "Cases, in Law and Equity, arising under this constitution". It would be more than 50 years before the Supreme Court again disallowed an act of Congress.

The Great Depression, and the election of Franklin Roosevelt as President, in 1932, marked a watershed of sorts in US politics, and even philosophy of government. The emphasis of the New Deal was on both economic recovery and social reform, and inevitably the Administration's economic and social legislation came under judicial scrutiny. The Supreme Court at that time was closely balanced; four conservative justices, three liberals and two, including Chief Justice Charles Evans Hughes, who were considered middle of the road. By the end of 1936 the Supreme Court had heard nine cases involving New Deal legislation; and in seven of the cases had found the legislation unconstitutional. Three of the verdicts were by a slim margin of 5-4, while two others were decided by a 6-3 majority. To New Deal supporters, it was an unprecedented use of the judicial veto to stymie pivotal social and economic legislation. The dissenting minority comprised by far the more distinguished members of the Court, Associate Justices Brandeis, Cardozo, Harlan Fiske Stone and on occasion Chief Justice Charles Evans Hughes. Justice Stone, who would succeed Hughes as Chief Justice, cautioned his conservative brethren that the "Courts are not the only agency of government that must be assumed to have a capacity to govern". The Court's narrow reading of the Constitution had made the future of the New Deal uncertain.

In 1936, Franklin Roosevelt, fortified by a fresh and overwhelming mandate, felt that something had to be done if the New Deal was to move ahead vigorously with its programmes. The problem did not lie with the Constitution, which was "a spacious charter of government", but with the Supreme Court majority. Roosevelt wanted a Court that would not be obstructionist in respect of the New Deal and that would not balk at federal concentration and intervention. In February 1937, he sent a message to Congress seeking reorganisation of the federal judiciary. He argued, somewhat disingenuously, that the Supreme Court was over-burdened, and, to enable it to keep abreast of its responsibilities, proposed the appointment of an additional Justice for every Justice aged 70 or over. This would have allowed the appointment of six more Associate Justices to the Court. It was a rare political misjudgment by Roosevelt. The "court packing" proposal did not elicit public support; even many New Dealers were not enthused. The Court, however, saw the light; it could not remain insulated from the needs of the times. In 1923, the Court had denied power to the federal government to set minimum wages, and, in 1936, had overruled a New York State minimum wage law for women. The apparent message was that no power existed in the country to "outlaw the sweat shop". In March 1937, however, the Court, in effect, reversed its 1936 decision when it upheld a Washington State minimum wage law. Weeks later it sustained the Wagner Act of 1935, which had bolstered the labour unions' right of collective bargaining. The Court majority had retreated from its "narrow ground of 1935-36". Charles Evans Hughes played a constructive role in defusing what could have become a bruising and self-defeating confrontation between the Executive and the Judiciary. Roosevelt's proposal of judicial reform failed, but as the older Justices eventually retired, he would make eight appointments to the Supreme Court; more than any other President except George Washington.

The US Constitution has been amended 27 times in 220 years. The amendments are integral to the Constitution and outside the purview of judicial review.

Photo: VISIONS OF AMERICA-JOE SOHM/GETTY IMAGES

The Supreme Court of India has radically extended the doctrine of judicial review to cover constitutional amendments also. In the Golak Nath case of 1967, the Supreme Court by a slim 6-5 majority -- which included Chief Justice K Subba Rao -- ruled that the State could not, even by constitutional amendment, abridge the fundamental rights enumerated in Part III of the Constitution. The Court's ruling was based on Art.13, which is emphatic that the "State shall not make any law which takes away or abridges the rights conferred" by Part III. The Court clearly interpreted the language of Art.13 very broadly to equate constitutional amendments with primary legislation. The 24th amendment of 1971 clarified that Art.13 would not apply to constitutional amendments. At the time of Golak Nath, Chief Justice Subba Rao was nearing retirement. He left the Court a few months early to contest the 1967 Presidential election as the opposition candidate against the Congress nominee, Dr Zakir Hussain. At that time the opposition included the Swatantra and the Bharatiya Jana Sangh parties. MC Setalvad, former Attorney General and an outstanding jurist, felt that for a serving Chief Justice to accept a political party's nomination for elective office amounted to "a grave judicial impropriety". The US and Indian systems are very different. Appointment to the US Supreme Court is for life. There was no suggestion of impropriety when Charles Evans Hughes resigned from the Supreme Court to run for President in 1916; or in 1944, when Associate Justice William O. Douglas was a strong contender for the Democratic Party's Vice Presidential nomination.

In the Kesavananda Bharati case in 1973, the Indian Supreme Court overturned the Golak Nath ruling by the narrow margin of 7-6. The Court ruled that a constitutional amendment was not a "law" for the purposes of Art.13, that fundamental rights could be abridged by constitutional amendment; the basic structure of the Constitution, however, could not be altered even by amendment. Chief Justice SM Sikri wrote the majority opinion. The term "basic structure" does not appear anywhere in the Constitution; the judgment did not definitively identify the basic structures either. The views of the concurring judges, however, broadly indicated the aspects of the Constitution that would qualify as basic structures. These included the supremacy of the Constitution, separation of powers, the mandate to build a welfare state, secularism, democracy, the federal and the republican character of government, sovereignty, integrity and unity of the country, and equality of status and opportunity. The basic structures could perhaps be discerned or inferred from the Preamble, the Fundamental Rights outlined in Part III, and the Directive Principles of State Policy. Years back, an eminent Supreme Court Judge explained the basic structure doctrine to me in simple terms. If at some future date the Indian people wanted to change to a monarchy, this could not be done by amending the existing Constitution, but only by convening a new constituent assembly.

Prime Minister Mrs. Indira Gandhi was not amused by the Kesavananda judgment. On Chief Justice Sikri's retirement soon afterwards, she appointed Justice AN Ray to succeed him. Justice Ray was one of the dissenting judges in the Kesavananda case. Justices Hegde, Shelat and Grover, all senior to Ray, who had concurred in the majority judgment, were passed over. This was the first time that seniority was disregarded in the appointment of the Chief Justice. Former Chief Justice M Hidayatullah quipped that this was an attempt to create not "forward looking judges" but "judges looking forward" to the office of Chief Justice. Hidayatullah would later be elected Vice President of India.

Two provisions of the 42nd amendment, which came into force in 1976, related specifically to the issue of constitutional amendment. Firstly, constitutional amendments were placed outside the purview of the courts. And secondly, Parliament asserted that its constituent power to amend the Constitution was unfettered and without limitation. In the Minerva Mills case in 1980, a Supreme Court Bench, headed by Chief Justice YV Chandrachud, invalidated both the provisions as unconstitutional and reaffirmed the basic structure doctrine. To Justice Chandrachud, the basic structure doctrine implied harmony and balance between fundamental rights and the Directive Principles. Former Chief Justice Subba Rao, in an article on Golak Nath and Kesavananda, expressed the view that a "remote judicial control may act as a brake against hasty and unreasonable legislative and executive action".

A judgment by the then Federal Court of Pakistan, in March of 1955, had a long term and wholly negative impact on constitutional development in the country.

In the last decade or so of colonial rule, India was governed under the Government of India Act of 1935. Executive authority was vested in the Governor General who was appointed by the King-Emperor. The Governor General was assisted by an Executive Council. The federal legislature consisted of the King-Emperor, represented by the Governor General, and two Chambers, the Council of State and the Federal Assembly. Laws passed by both Chambers required the assent of the Governor General. After partition, the Act of 1935, duly adapted and modified, and the Indian Independence Act of 1947 were the Constitutional Instruments of Pakistan. The Act of 1947 provided that the legislature would act as the Constituent Assembly "for the purpose of making provisions as to the Constitution of the Dominion". In August 1947, Jinnah assumed office as the first Governor General of Pakistan, and simultaneously also served as President of the Constituent Assembly. During his lifetime, the Assembly formulated its rules of procedure; constitutional laws would be operative after authentication by the President, and publication in the gazette under the authority of the President. There was no provision for the Governor General's assent in respect of constitutional laws. Over time the Assembly made changes to the Act of 1947 to make it more consistent with the notion of an independent State. Powers of the Assembly relating to constitutional provisions were placed outside the purview of the courts, and in 1954 the High Courts were conferred the power to issue writs.

Malik Ghulam Muhammad was Pakistan's third Governor General. In British times he was a civil servant, and had also dabbled in business. Qudratullah Shahab served as his secretary during 1954-55. Shahab was of the old ICS and also a writer of considerable merit. In the course of a distinguished career, he served as Secretary to the Government and Ambassador abroad. After the Martial Law of 1969, he opted for early retirement when he fell foul of Generals Yahya Khan and Peerzada. He was at that time eight years or so from superannuation. For a time he was obliged to live abroad. His posthumously published memoirs afford insights into happenings in "high places". Ghulam Muhammad, Shahab notes, was in ill health; partially paralyzed and suffering from hypertension and tremors in both hands. He could not walk unaided more than a few steps. Mentally he was erratic and irrational. His speech was barely intelligible. He was, however, a past master at manipulation and unholy intrigue. His most pronounced character traits were an obsession with power and a lust for women. It was an enigma to Shahab that such a person should become the Governor General of the country.

Photo: DUNCAN WALKER/GETTY IMAGES

In April 1953, Ghulam Muhammad dismissed Prime Minister Khwaja Nazimuddin, who had a comfortable majority in the Constituent Assembly. The Assembly had, in fact, passed the budget shortly before the Prime Minister's dismissal. Professor Keith Callard expressed the view in a book that Ghulam Muhammad's action gravely weakened three major conventions of cabinet government, namely, the impartiality of the Governor General, the convention of cabinet and party solidarity, and the role of the legislature as the maker and sustainer of government. Mohammad Ali Bogra was appointed to succeed Khwaja Nazimuddin and was duly elected leader of the Muslim League Parliamentary Party.

The Constituent Assembly met five months after Nazimuddin's ouster. By October of 1954 the draft of the Constitution was ready. It was vetted by Sir Ivor Jennings -- an eminent authority on constitutional law -- and the Prime Minister was hopeful that the Constitution would be adopted on Jinnah's birthday, December 25. Wary of the Governor General's arbitrary notions of his own reserve powers, the Assembly also amended the Act of 1935 and enacted into law the basic conventions of cabinet government -- the Governor General was to act on the advice of the Cabinet, and the Cabinet would be collectively and severally responsible to the Legislature. Ghulam Muhammad was not amused. On October 24 he declared a state of emergency and dissolved the Constituent Assembly on the ground that it had lost the confidence of the people and could no longer function. Time magazine described the event as a change from an unstable pro-Western democracy to a more stable pro-Western military dictatorship. Ghulam Muhammad, the magazine noted, was an "ardent Marilyn Monroe fan". A "cabinet of talent" was appointed with Mohammad Ali Bogra as Prime Minister.

The President of the Constituent Assembly, Maulvi Tamizuddin Khan, challenged the dissolution of the Assembly by writ petition in the Sind Chief Court. On behalf of the State it was argued that the amendment to the 1935 Act, by which the superior courts were conferred writ jurisdiction, had not received the Governor General's assent, the writ petition thus was not competent and the Sind Court had no jurisdiction to hear the case. The petitioner contended that the Governor General's assent was not required in constitutional law for Acts of the Constituent Assembly, the Acts of 1935 and 1947 did not empower the Governor General to dissolve the Assembly, and as per the Act of 1947 the Assembly was a sovereign representative body which had to continue until work on the constitution was completed. In February 1955, a four member bench headed by Chief Judge, Justice GB Constantine, by unanimous decision, allowed the writ petition. The court held that the words "assent" and "dominion" had to be construed in the context of the movement for freedom from colonial rule. Undeterred, Ghulam Muhammad appealed to the Federal Court. On March 21, by a 4-1 split judgment, the Federal Court allowed the Governor General's appeal on a specious technicality. The judgment would be described decades later as a "momentous ruling from which Pakistan has never fully recovered". The leading judgment was written by Chief Justice Munir; Justices Akram, Sharif and SA Rahman concurred, while Justice Cornelius dissented.

Justice Munir held that in 1947 Pakistan had achieved not full independence, but an independence restricted by the prerogative rights of the English Crown, that the Constituent Assembly was not a sovereign body. He interpreted two sections of the 1947 Act to mean that the Assembly functioned as the "Legislature of the Dominion", and the Governor General's assent was necessary for all legislation by the Legislature. The amendment to the 1935 Act by which the superior courts were conferred writ jurisdiction had not received the Governor General's assent, and thus was not law. The Sind Chief Court, therefore, did not have the power to issue writs. The Court did not address the substantive issues of the case. Justice Cornelius argued that Pakistan was an independent Dominion with no allegiance to the Crown, that there was nothing in the law which made the Governor General's assent to Acts of the Constituent Assembly a sine qua non, so as to invalidate all laws passed by the Assembly without assent. The executive branch had never "shown any doubt on this point" until "after the event of 24 October 1954". He recalled three important cases decided by the superior courts, including the Federal Court, in which it was held that the Governor General's assent was not essential to place on the statute book constitutional laws passed by the Assembly.

The Federal Court thus upheld the dissolution of the Constituent Assembly, albeit indirectly. The judgment also had unintended consequences. As many as 46 constitutional acts passed over seven years that had not received the Governor General's assent were invalidated. The country was without a Constituent Assembly, and also without laws relating to the election of a new Assembly; even the laws for delimitation of constituencies did not exist. The provincial legislatures were illegal; they had been elected under laws that had not received assent. Many superior court judgments in writ petition cases were nullified, since the courts, as per the judgment, did not have writ jurisdiction. There was a real threat that the legal and administrative systems could breakdown.

Ghulam Muhammad was unperturbed. He sought by emergency powers ordinance to validate 35 of the 46 laws that had been affected. The Federal Court, however, demurred, and, in another constitutional case, ruled that the Governor General could not claim powers that he never had; nor could he succeed to the powers of the Assembly. Following a special reference, however, the Court gave an advisory opinion that was more to the liking of the Governor-General. It upheld the legality of the dissolution of the Assembly, under the common law doctrine of state necessity, as the Assembly had not framed a constitution within a reasonable time. The Court also held that the Governor-General could retrospectively validate laws, as needed, until a new Constituent Assembly met to decide the matter. Three years on, in the Dosso case, Munir again applied state necessity, deftly combined with "legal positivism", to give legal cover to the Martial Law of 1958. A successful coup, Munir asserted, was an "internationally recognized method of changing a Constitution". In the Asma Jilani case, in 1972, the Supreme Court would overrule Dosso. The Court ruled that Yahya Khan's was an illegal regime. Yahya Khan at that time was, of course, in disgrace and could safely be disavowed.

Information that has come to light in more recent years reflects poorly on Munir. After retirement, he apparently disclosed that the Dosso case decision was not based on judicial considerations. Justice SH Bukhari, formerly of the Lahore High Court, who writes occasionally on legal issues in newspapers, referred to this in one of his articles. Dr Ayesha Jalal is a Pakistani-American sociologist and historian and teaches at Tufts University. She has authored books on Pakistan. In one of her books she states that Ghulam Muhammad had consulted Chief Justice Munir after the Sind Court judgment in the Tamizuddin case, and was reassured by his "sympathy with the centre" and readiness to "overrule the lower court's decision". Incidentally, an important road in Islamabad today is named after Maulvi Tamizuddin.

Field Marshal Ayub Khan's diaries, covering the period 1966-72, were published posthumously in 2007. There are two entries on Munir. On July 12, 1967 Ayub Khan entertained to dinner his "old friend", former Chief Justice M Munir. In response to a query by his host, Munir clarified that he had not advised President Mirza to abrogate the Constitution in 1958; rather he had urged him to "allow the elections to take place and the inevitable chaos to develop". Mirza would then be in a "better position and on a better wicket to declare an emergency". From a Chief Justice to a President, this was extraordinary, even conspiratorial, advice. Munir retired as Chief Justice in 1960. During 1962-64, he served as Ayub Khan's Law Minister. Clearly the Field Marshal had not been unmindful of his "old friend". On August 8, 1968, Munir and Ayub Khan met in London. Munir had gone there for treatment after a heart attack. Ayub Khan found him suffering from "depression and insomnia", a "completely broken man" who had "lost all faith in himself and life". Munir recovered sufficiently from whatever it was that ailed him to write two books; but more on his literary efforts later.

Sajjad Ali Shah served as Chief Justice of Pakistan during 1994-97. In his very readable memoirs, he touched upon the Tamizuddin case and commented briefly on his two predecessors who heard the case and arrived at very different conclusions. Justice Cornelius to him "stood out as a great judge who expressed his opinions fearlessly and had a very incisive and analytical mind". Justice Munir was a "very competent judge who was very learned in law and had authored masterly judgments". He was at the same time a "very practical judge who always kept in view the surrounding circumstances and was very objective in his analysis". This is sedate and circumspect language of a brother judge commenting on senior brother judges. It also sheds light on Munir's judicial philosophy.

The late MH Panhwar, a US trained agricultural engineer, was a person of varied interests, which included horticulture, archaeology and history. He has written books on Sind, and has been described as a "Sindhologist". He related a curious incident sometime back in an article posted on the internet. Sometime in 1957-58, in the company of Dr AM Shaikh, Director of Agriculture of West Pakistan, he had gone to the residence of the provincial Irrigation Minister, Kazi Fazlullah. They were asked to wait, as the Minister had an important visitor. Joining them later, Fazlullah told them that Chief Justice Munir had visited him with a strange request. Haider Baksh Jatoi, a leftist political leader of Sind, had written a booklet critical of the judgment in the Tamizuddin case. He had sent an advance copy to Munir for comments, if any. Munir wanted Jatoi involved in a criminal case and arrested, to prevent release of the book! Fazlullah, who was also from Sind, could not oblige Munir and suggested instead that if the Chief Justice felt strongly, he should charge Jatoi with contempt. Munir, however, was reluctant; he was not certain of the public reaction to contempt charges and did not relish the media attention this would evoke. Panhwar later confirmed with Jatoi, whom he knew, that the latter had indeed sent his booklet to Munir, who returned it without comment.

In his book, From Jinnah to Zia -- published in 1979 -- Munir attributed a telling comment on secularism to Jinnah. Jinnah supposedly made the comment in an interview with Reuters' correspondent Doon Cambell. Some years back, British-Asian writer and editor, Saleena Karim, discovered in the course of research that the quote attributed to Jinnah was fabricated; Jinnah had never made such a comment to a journalist or in any other forum or time. Saleena Karim traced its origin to the Munir Report on the 1953 anti-Ahmaddiyah riots in the Punjab. She was so exercised by her discovery that she wrote a book, which she named Secular Jinnah: Munir's Big Hoax. Since 1954, the comment or quote has been cited by scholars and commentators, and was even referred to in the Constituent Assembly debates in 1954. Munir clearly stood for a secular polity. Karim's book was published more than 25 years after Munir's death. It may thus never be known whether it was a genuine mistake on his part, or if the quote was a fabrication to bolster a thesis.

Addressing the Ohio Judicial Conference in September 1968, Warren Burger, Judge of the US Circuit Court of Appeals, said, "A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis…In a country like ours, no public institution, or the people who operate it, can be above public debate". Burger would be appointed Chief Justice of the US nine months later. Announcing his nomination, President Nixon declared, "Our Chief Justices have probably had more profound and lasting influence on their times and on the direction of the nation than most Presidents have had". In the US context, Nixon probably had a point. At all events, the impact of a dynamic and progressive apex court on the life and times of a people can only be wholesome. The converse, one would assume, is also largely true.