Sanu Ranjan
The “Great Silences of
the Constitution”, represent the True Spirit of the Living Document, the spirit of its age and the “Inherent
Constitutional Morality” which was infused by its Framers in those texts, behind and beyond their Textual and Literal
meaning. Therefore, to begin
with the importance of Constitutional
Silence is to end with the melody of Constitution that lies in these poetic
words of mine,
“Hear, O! my Friend hear, For the
Silences of Law are too dear!
To be left unheard is to leave Truth and
Justice,
What shall then be left to inhere from
the Morality that we preach?
What shall then be left to infuse from
the Ideals that Law teach?
That the Constitutions are not words, of
languages and grammars to be engraved,
That the Constitutions are not documents,
of Senators and Magistrates to be saved,
For they are the soul of its people, that
beholds the spirit of their age,
For they are the Hope and Voice of its
People,
Hear them, O! my friend hear them, how
they Cheer!, For the Silences of Law are too dear!”
It also represents the philosophy of principles which are molded as the ‘constitutional text’. Thus, Sudish Pai, the great Indian Jurist in his
paper, Construing the Sounds of the Constitution’s Speech: Meanings beyond Text,
says about Constitutional Silence as,
“How does a Constitution speak? How do we get its messages? Is it
merely by reading the text and going by the letter of the law? Or is it
something more- profound and fascinating? Is there a sound in the silences
also? These are issues of great moment. Looking only to the text and the letter
may give rise to cacophony. What is important is not only what a Constitution
says, but even more what it means. Sometimes even the silences are eloquent.
What is not expressly stated is also sometimes as eloquent and meaningful as
what is said. It is when speech and silence are juxtaposed, you hear a fleeting
message-that is the ‘melody of the Constitution’”.
Laurence H. Tribe, a great
American constitutional scholar, in his book The Invisible Constitution,
remarks that,
‘The visible Constitution floats in a vast deep ocean and crucially
and invisibly in an ocean of ideas and experiences. It is only in the depths of
that ocean that the Constitution finds its meaning.’
In Govt. of NCT of Delhi v Union
of India, the Hon’ble Supreme Court speaking through Dipak Misra J.
observed that,
“Constitution is the fundamental document that provides for
constitutionalism, constitutional
governance and also sets out morality, norms and values which are inhered in various articles and sometimes are
decipherable from the constitutional silence. Its inherent dynamism makes it organic and, therefore,
the concept of constitutional sovereignty is sacrosanct.
Sometimes, the constitutional sovereignty is described as the supremacy of the
Constitution. The provisions of the Constitution need not expressly stipulate
the concepts of constitutionalism, constitutional governance or constitutional
trust and morality, rather these norms and values are inherent in various
articles of the Constitution and sometimes
are decipherable from the
constitutional silences.”
Hohfeldian Juristic
Right:- Bhagwati J. & the Obligatory sense of Norms
The Hohfeldian sense of Jural Relation was expressed
remarkably by the Indian Supreme Court in State
of Karnataka v Union of India & anr. wherein it observed that,
“The word 'right' has undergone successive shifts in meaning and
Hohfeld in his ‘Fundamental Legal Concepts as Applied to Legal Reasoning’ gives four different meanings of the word
right,. One is right strict to sensu, the other is liberty, the third is power
and the fourth is immunity. In its strict sense 'right' is defined-as interest
which the law protects by imposing corresponding duty on others. 'Liberty' is
exemption from the right of another and its correlative is no-right' and in the
same way 'power' is ability to change the legal relations of another and its
correlative is liability. Similarly, 'immunity' is exemption from the legal
power of another and the correlative of immunity is disability.”
The Court then highlighted the Jural Relation in this remarkable manner,
“where there is a right stricto sensu in A, there is a
correlative duty in B to do X. Similarly, where A has liberty to do X, there is
a correlative no-right in B to interfere in regard to it. The correlative of,
power in A is liability in B as regards X and similarly, where there is
immunity in A from the legal power of B, its correlative is disability in B as
regards X. These are the four different jural relationships recognised by law
and they are comprehended within the generic term 'right'.”
Thus, in the Hofeldian Classification, of Rights and Duties the Duties
can only be said to exist with a Corresponding Enforceable Right and without
which no enforceable duty could exist.
This Classification of Rights, has held its sway, in Jural Relationships and in determination of Legal Rights and
interpretation of Constitutional Provisions by the Constitutional Courts and it
is due to this reason the Directive Principles, has lost its Place of Pride and
its true meaning in our Constitutional Scheme.
Bhagwati J. in his dissenting opinion in Minerva Mills v Union of India, emphatically criticized the Hohfeldian
Sense of Jural Relation of Right and observed with great profundity the
‘Obligatory Sense of Legal Rule as Norms’ that,
“I may also point out
that simply because the Directive Principles do not create rights enforceable
in a court of law, it does not follow that they do not create any obligations
on the State. We are so much obsessed by the Hohfeldian Classification that we
tend to think of rights, liberties, powers and privileges as being invariably
linked with the corresponding concept of duty, no right, liability and
immunity. We find it difficult to conceive of obligations or duties which do
not create corresponding rights in others.
But the Hohfeldian concept does not provide a satisfactory
analysis in all kinds of jural relationships and breaks down in some cases
where it is not possible to say that the duty in one creates an enforceable
right in another. There may be a rule which imposes an obligation on an individual
or authority and yet it may not be enforceable in a court of law and therefore
not give rise to a corresponding enforceable right in another person. But it
would still be a legal rule because it prescribes a norm of conduct to be
followed by such individual or authority.
The law may provide a mechanism for enforcement of this
obligation, but the existence of the obligation does not depend upon the
creation of such mechanism. The obligation exists prior to and independent of
the mechanism of enforcement. A rule imposing an obligation or duty would not
therefore cease to be a rule of law because there is no regular judicial or
quasi-judicial machinery to enforce its command. Such a rule would exist
despite of any problem relating to its enforcement.”
Therefore the Court profoundly stated that,
“It is therefore, to my mind, dear beyond doubt that merely
because the Directive Principles are not enforceable in a court of law, it does
not mean that they cannot create obligations or duties binding on the State.
The crucial test which has to be applied is whether the Directive Principles
impose any obligations or duties on the State; if they do, the State would be
bound by a constitutional mandate to carry out such obligations or duties, even
though no corresponding right is created in any one which can be enforced in a
court of law.”
Thus, the Law when seen as Norm, then by virtue of being a Norm, it creates an Obligation towards the State.
The
Nature of Kelsen Basic Norm:- A Place of Pride in the Constitutional Scheme
Kelsen in his General Theory of
Law and State, asks a very important question on ‘validity of norms’, as he
says that,
“The legal order is a system of norms. The question then arises: What
is it that makes a system out of a multitude of norms? When does a norm belong
to a certain system of norms, an order? This question is in close connection
with the question as to the reason of validity of a norm”
He states that,
“The reason for the validity of a norm is not, like the test of
the truth of an “is” statement, its conformity to reality. As we have already
stated, a norm is not valid because it is efficacious. The true reason is norms
tacitly presupposed because taken for granted. The reason for the validity of a
norm is always a norm, not a fact.
The quest for the reason of validity of a norm leads back, not
to reality, but to another norm from which the first norm is derivable. A norm
the validity of which cannot be derived from a superior norm we call a “basic”
norm. All norms whose validity may be traced back to one and the same basic
norm form a system of norms, or an order. This basic norm constitutes, as a
common source, the bond between all the different norms of which an order
consists. That
norm is the basic norm providing the foundation for a system of dynamic
character. The
basic norm of a dynamic system is the fundamental rule according to which the
norms of the system are to be created”
He states the conditions when Basic Norm would loose its Legitimacy, as
he states,
“They remain valid as long as they have not been invalidated in
the way which the legal order itself determines. This is the principle of
legitimacy. A revolution, in this wide sense, occurs whenever the legal order
of a community is nullified and replaced by a new order in an illegitimate way,
that is in a way not prescribed by the first order itself. From a juristic
point of view, the decisive criterion of a revolution is that the order in
force is overthrown and replaced by a new order in a way which the former had
not itself anticipated.”
Therefore, the manner of “invalidity of Legal Norm” could only be done
through the revolution or by the replacing of the ‘Old Legal Order’. The most
profound statement of his relates to the Constitution, in material and in formal sense, where he states that,
“The hierarchical structure of the legal order of a State is roughly
as follows: Presupposing the basic norm, the constitution is the highest level
within national law. The constitution is here understood, not in a formal, but
in a material sense. The constitution in the formal sense is a certain solemn
document, a set of legal norms that may be changed only under the observation
of special prescriptions, the purpose of which it is to render the change of
these norms more difficult. The constitution in the material sense consists of
those rules which regulate the creation of the general legal norms, in
particular the creation of statutes. It is because of the material constitution that there is a special
form for constitutional laws or a constitutional form.”
Thereafter, he talks about the “Content of Norms in Constitution”, which
is most important for our purpose and thereafter he says with utmost
profundity which I think to be quoted in
extenso, that
“The material constitution may determine not only the organs and
the procedure of legislation, but also, to some degree, the contents of future
laws. The constitution can negatively determine that the laws must not have a
certain content, e.g., that the parliament may not pass any statute which
restricts religious freedom. In this negative way, not only the contents of
statutes but of all the other norms of the legal order, judicial and
administrative decisions likemse, may be determined by the constitution.
The constitution, however, can also positively prescribe a
certain content of future statutes; it can, as does, for instance the
Constitution of the United States of America, stipulate “that in all criminal
prosecutions the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, etc.
...” This provision of the constitution determines the contents of future laws
concerning criminal procedure.”
Thus, the Norm which is Basic in its Nature, in its Material Sense has
both positive and negative content and it’s the Material Sense which truly
infuses Constitutional Form in the Constitutional Law. Therefore, the norm
which states about positive content commands the other General Norms to be in the similar form for the reason of the
validity of the general or statutory norm itself and Directive Principle
represents remarkably the similar nature.
Therefore,
Directive Principles, being a Basic Norm of our Constitution “is the governing
norm that directs positive contents to be infused with the Statutory Law and
thus in the material sense represents the true characteristic of Constitutional
Law which will govern the validity of Statutory Law enacted after the
Constitution and which will be invalid if it is against the directive principle
of Basic Norm or in violation of Basic Norm, commanding the infusion of
positive content. This is the true Constitutional Scheme of the Directive
Principle when considered as Norm in the Constitutional Law”.
The argument for the “Justiciability of Basic Norm is a wrong argument that has
been advocated by a different writer. For the Efficiency of the Basic Norm of
Legal Order is presupposed and inherent in its nature, for being a Basic Norm
and the validity and efficiency of the Basic Norm can never be invalidated until
and unless the whole legal order of norms is overthrown by a New Legal Order
and to say that, “the validity of the basic norm is based on the justiciability
is to turn upside down the “system of normative law, wherein the Legitimacy and The validity of a Judicial Body, to judicially review and uphold the statutory law
is acquired from Basic Norm and the basic norm is not dependent on the court to
enforce or examine its validity, for they are the source of the law creating norms and
bind the courts to uphold them, in order that the whole legal order may
survive. Thus, a “Basic Norm can never
be dependent on another norm, for its validity except itself”
The “Enforceable
Directive Principles”:- “State shall
Strive”, Framers Intent and Judicial
Interpretation, the reading of
Minerva Mills
B.R Ambedkar emphasising the importance of the Directive Principles
observed that,
“In my judgment, the directive principles have a great value,
for they lay down that our ideal is economic democracy. that our object in
framing this Constitution is really twofold : (i) to lay down the form of
political democracy, and (ii) to lay down that our ideal is economic democracy
and also to prescribe that every Government whatever, it is in power, shall
strive to bring about economic democracy.
The word 'strive' which occurs in the Draft Constitution, in
judgment, is very important. We have used it because our intention is even when
there are circumstances which prevent the Government, or which stand in the way
of the Government giving effect to these Directive Principles, they shall, even
under hard and unpropitious circumstances, always strive in the fulfillment of
these Directives. That .is why we have used the word 'strive'. Otherwise, it
would be open for any Government to say that the circumstances are so bad, that
the finances are so inadequate that we cannot even make an effort in the
direction in which the Constitution asks us to go”.
Bhagwati J. in Minerva Mills v
Union of India, with great eloquence and having words pregnant with profound
meaning observed that,
“Now on this question
Article 37 is emphatic and makes the point in no uncertain terms. It says that
the Directive Principles are "nevertheless fundamental in the governance
of the country and it shall be the duty of the State to apply those principles
in making laws." There could not have been more explicit language used by
the Constitution makers to make the Directive Principles binding on the State
and there can be no doubt that the State is under a constitutional obligation
to carry out this mandate contained in Article 37. In fact, non-compliance with
the Directive Principles would be unconstitutional on the part of the State and
it would not only constitute a breach of faith with the people who imposed this
constitutional obligation on the State but it would also render a vital part of
the Constitution meaningless and futile.
This would mean that
the same State which is injuncted from taking any action in infringement of the
fundamental Rights is told in no uncertain terms that it must regard the
Directive Principles as fundamental in the governance of the country and is
positively mandated to apply them in making laws. This gives rise to a
paradoxical situation and its implications are far-reaching. The State is on
the one hand, prohibited by the constitutional injunction in Article 13 from
making any law or taking any executive action which would infringe any
Fundamental Right and at the same time it is directed by the constitutional
mandate in Article 37 to
apply the Directive Principles in the governance of the country and to make
laws for giving effect to the Directive Principles.”
Henceforth, the Court states
“This would mean that the same State which is injuncted from
taking any action in infringement of the fundamental Rights is told in no
uncertain terms that it must regard the Directive Principles as fundamental in
the governance of the country and is positively mandated to apply them in
making laws. This gives rise to a paradoxical situation and its implications
are far-reaching. The State is on the one hand, prohibited by the
constitutional injunction in Article 13 from making any law or taking any
executive action which would infringe any Fundamental Right and at the same
time it is directed by the constitutional mandate in Article 37 to apply the
Directive Principles in the governance of the country and to make laws for
giving effect to the Directive Principles”.
Hence, to end with, there would be no better remark than to quote in extenso the profound observation of
Bhagwati J. in Minerva Mills v Union of India
“The two constitutional obligations, one in regard to
Fundamental Rights and the other in regard to Directive Principles, are of
equal strength and merit and were is no reason why, in case of conflict, the
former should be given precedence over the latter. That whether or not a
particular mandate of the Constitution is justiciable has no bearing at all on
its importance and significance and justiciability by itself can never be a
ground for placing one constitutional mandate on a higher pedestal than the
other.
The effect of giving greater weightage to the constitutional
mandate in regard to Fundamental Rights would be to relegate the Directive
Principles to a secondary position and emasculate the constitutional command
that the Directive Principles shall be fundamental in the governance of the
country and it shall be the duty of the State to apply them in making laws.
It would amount to refusal to give effect to the words
"fundamental in the governance of the country" and a constitutional
command which has been declared by the Constitution to be fundamental would be
rendered non-fundamental. The result would be that a positive mandate of the
Constitution commanding the State to make a law would be defeated by a negative
constitutional obligation not to encroach upon a Fundamental Right and the law
made by the legislature according to a positive constitutional command would be
delegitimised and declared unconstitutional.”
Therefore, the declaration of
Directive Principles as Law Creating Norm directing the statutory norm to be
made with specific content is valid and does not need specific written
justiciability to be fundamental and to be used for holding the law
Unconstitutional, as a matter of Judicial Review. For any norm must not
infringe the positive direction of principles, as these principles in the
Kelesenian Juristic Sense constitutes ‘basic norm of the constitution in the material sense’ and governs the validity of statutory norm and any norm against
such a directive will be invalid and thus Unconstitutional. The Idea of
Justiciability remains only for the enforcement of statutory right which
provides a sanction in cases of non-enforcement of such right, but for the
Basic Norm, which is presupposed to be valid and to be enforceable for the
Legal Order to survive, the “idea of enforceability of Basic Norm is inherent”,
and need not be recognized in a written manner for its enforceability. Therefore,
if we could hear the Constitutional Silence infused in the Directive
Principles, we could hear our Constitution directing the “legislature to infuse
law with such positive content and create such normative order” as well as “it
command the Legislature to not violate such positive content and ‘strive’ for
the Progressive Realization of Human Rights, of which Directive Principle is a
great part and therefore, the “Directive Principles of State Policy cannot
be reduced to oblivion by a sleight of interpretation”.
Thank you
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