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Explaining Origins

Dark Matter and the Constitution

Suchindran B N (suchindranbn@lawshire.com) is an advocate and associate fellow at the Vidhi Centre for Legal Policy, New Delhi.

The significance of Justice J Chelameswar’s concurring judgment in the Puttaswamy case is that it seeks to address the source of the Supreme Court’s power. It seeks to give a working jurisprudential model of the constitutional universe that was rendered into chaos by the manner of birth of the basic structure doctrine in the Kesavananda Bharati case. By fitting in with the concept of constitutional autochthony, “dark matter” offers an opportunity for restructuring our own understanding of the Constitution.

It would not be an understatement to say that the six concurring judgments of the Supreme Court in K Puttaswamy v Union of India (2017a) have unanimously and together expanded the known universe and exponentially increased the future possibilities of our Constitution. The main judgment of Justice D Y Chandrachud (on behalf of himself, Chief Justice J S Khehar, and Justices Abdul Nazeer and R K Agrawal) and the separate concurring judgment of Justice R F Nariman are clinical and remarkable for their clarity on the historical, structural, ethical, and doctrinal aspects of the right to privacy.

They seek, and succeed, in offering a comprehensive restatement of the right to privacy and settle many related constitutional controversies and inconsistencies. The importance of Justice S K Kaul’s concurring judgment is that it agrees with most of the findings and provides the crucial fifth vote for securing many of the practical consequences, such as the overruling of the atrocious judgment in Suresh Kumar Koushal v Naz Foundation (2014).

But, it is Justice J Chelameswar’s judgment that attempts to take advantage of this constitutional moment to address an old ghost, that of the origins of the basic structure doctrine and also the origins of the Constitution itself. In doing so, I would argue, Justice Chelameswar drops an anchor in order to moor the Constitution so that further development of the basic structure, and of the interpretation of the Court’s expansive powers are marked not by a rudderless drift, but, as B R Ambedkar once put it, “drift with mastery.” Alone amongst the judges does he choose to pierce the judicial veil of Kesavananda Bharati v State of Kerala (1973), protected as it is by the foreboding size of a 13-judge bench, the largest assembled by the Supreme Court.

In this article, I will attempt to demonstrate that this is a refreshing, though not original, breath of fresh air, and breathes life into the field of constitutional theory and interpretation. In order to do this, we will first have to delve into the past and refer to two important moments in our constitutional history.

Of Constitutional Origins

First, to fully understand the significance of Justice Chelameswar’s judgment, we need to go back to the very founding of our constitutional republic. The Constituent Assembly for India was set up under the Cabinet Mission Plan of 16 May 1946 and had originally visualised approval by the British Parliament, despite indications to the contrary in various speeches. But, legally speaking, independence and the power to frame a constitution was still a grant of the British Parliament insofar as the assembly and the government of independent India continued to operate under two enactments of the British Parliament, namely the Government of India Act, 1935 and the Indian Independence Act, 1947. India was also still operating as a dominion under the overlordship of a Governor General appointed by the British Crown.

It was here that the assembly decided to assert their sovereignty and make a complete break from the past. The words “give to ourselves this constitution” was added to the preamble, and the Constitution was not sent to the Governor General for his assent, but was signed only by the President and members of the Constituent Assembly.

This process by which the assembly delivered an indigenous constitution is called constitutional autochthony. The etymological roots of “autochthony” are to be found in the Greek “autos” (self) and “chthon” (earth), or in other words “from one’s own soil.” It should be noted that this was consistent with the dominant academic view in the middle of the 20th century, that autochthony could not be achieved simply by drafting an original constitution or verbally invoking “We, the People” as the source of its authority, for autochthony does not concern the content of the constitution, but its pedigree or the chain of legal validity authorising it (Swaminathan 2013).

Interestingly, this is also consistent with another of Justice Chelameswar’s concurring judgments involving the question of sovereignty theory in Republic of Italy v Union of India (2013), where, in making a fine distinction, he differentiates an earlier decision of a coordinate bench, stating that in international law “sovereignty is not ‘given,’ but it is
only asserted.”

Second, Justice Chelameswar’s judgment addresses the paradox of the origin of the basic structure doctrine, which has been avoided scrupulously by the Court ever since its judgment in Indira Nehru Gandhi v Raj Narain (1975) threatened to unravel the entire doctrine. The basic structure doctrine was born, after considerable struggle and amidst much political noise, in the Kesavananda Bharati judgment (1973). However, buried under the weight of the longest judgment delivered by the Court in its history is the secret that there is no common ratio or reasoning on which a majority of judges agreed.

Instead, judges since have largely chosen to accept paragraph 2 of a document titled “The View of the Majority” that was circulated by Chief Justice S M Sikri after the judgment was delivered. The paragraph states that “Article 368 does not enable Parliament to alter the basic structure or the framework of the Constitution,” and this has, in the absence of a de jure source, become the de facto source of the basic structure doctrine. Apart from the legal validity of a summary signed by only nine out of 13 judges of the bench, after the rendering of their judgment, it is relevant to note that paragraph 2 only reflected the judicial position of Justice H R Khanna. Even Nanabhoy A Palkhivala (1973), lead counsel for the petitioner, himself has stated in an article published soon after the judgment that “by a strange quirk of fate” the judgment of Justice Khanna, with whom none of the other judges agreed, has become the law of the land (Andhyarujina 2011).

Enter ‘Dark Matter’

Justice Chelameswar attributes the source of the power, to enumerate rights not expressly provided, to the Constitution’s “dark matter” (K Puttaswamy v Union of India 2017b: para 12–13). In doing so, he veers the basic structure away from the accepted position reflected in the explanation of Justice Khanna (Indira Nehru Gandhi v Raj Narain 1975a: para 175) and takes it towards the formulation of Justice K K Mathews in the same case, wherein he stated:

I cannot conceive of rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the Constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law. Even if I assume that rule of law is a basic structure, it seems to me that the meaning and the constituent elements of the concept must be gathered from the enacting provisions of the Constitution. (Indira Nehru Gandhi v Raj Narain 1975b: para 341)

Justice Chelameswar goes a little further, and answers the assumption of Justice Mathew by presenting “dark matter” as an almost perennial and inexhaustible source within the four walls of the Constitution. In other words, it might not be a “twinkling star up above the Constitution”, but it is an “invisible star” existing within the Constitution. The existence of these “invisible” rights can only be deduced by the gravitational pull of the expressly mentioned rights, or the essential identity of the Constitution in the case of the basic structure.

Through his judgment, Justice Chelameswar brings the doctrine within the ancient deeming fiction of the English common law judges that judges do not make law, but only find or discover it. In doing so, he gives a jurisprudential and legal basis for what was essentially a doctrine born out of political necessity and much controversy.

‘Invisible Constitution’

The analogy of dark matter in relation to constitutions was first suggested by American scholar Laurence Tribe in The Invisible Constitution (2008). Tribe states in a single-paged chapter entitled “Dark Matter” that the hope of the book is to “nudge the nation’s constitutional conversation away from debates over what the constitutions says and whether various constitutional claims are properly rooted in the written text and toward debates over what the constitution does” (2008: 22). Although this analogy is left unattributed by Justice Chelameswar, we can presume that this was an oversight and not a deliberate omission by a judge who otherwise has been very particular in this respect in most of his judgments. But, it is possible that this omission was deliberate in order to keep the theory relevant and grounded in reality, and avoid taking it down the metaphysical and diagrammatic route taken by Tribe.

In attempting to organise the constitution’s dark matter, Tribe identified what he calls “six distinct overlapping modes of construction in forming the invisible constitution: geometric, geodesic, global, geological, gravitational and gyroscopic.” He follows this with six very detailed and annotated illustrations attempting to explain his theory that are more suited to the cosmological universe of his inspiration, in my opinion, than to the real world of the judge. For, the latter does not have the luxury of dealing with paradoxes in the abstract, and their judgments have real and determinate consequences affecting immediate rights.

Common Law of the Constitution

Justice Chelameswar is not the first judge of the Supreme Court to suggest this common law theory of constitutional development. It was first proposed by Justice Vivian Bose in the context of the right to equality, in his concurring judgment in State of West Bengal v Anwar Ali Sarkar (1952), where he opined that even though the common law judges did not purport to make the law, they

had to draw for their material on a nebulous mass of undefined rules which, though they existed in fact and left a vague awareness in man’s minds, nevertheless were neither clearly definable, nor even necessarily identifiable, until crystallised into concrete existence by a judicial decision. (emphasis added)

What is dark matter but this “nebulous mass of undefined rules” awaiting crystallisation in a judicial decision?1 In anticipating the development of constitutional law from Rustom Cavasjee Cooper v Union of India in 1970 to the Puttaswamy case in 2017, Justice Bose went on to add this unbelievably prophetic passage:

In the same way, the laws of liberty, of freedom and of protection under the Constitution will also slowly assume recognisable shape as decision is added to decision. They cannot, in my judgment, be enunciated in static form by hide-bound rules and arbitrarily applied standards or tests.

The pithiest description of this manner of common law development has been offered by American jurist Oliver Wendell Holmes Jr (1881: 1) in this oft- quoted passage:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

In my opinion, Justice Chelameswar’s judgment introduces the experiences of the law and rationalises them in order to provide a new anchor for its future development.

Living Constitutionalism

Rather surprisingly, the clearest expression of the judicial philosophy of Justice Chelameswar is not to be found in the text of the judgment, but is detailed in explanatory footnote 19. Here, he weighs in favour of the “living constitutionalist” approach, but adds that the Court

need not, in the abstract, fit a particular interpretative technique within specific pigeonholes of a living constitutionalist interpretation. Depending on which particular source is most useful and what the matter at hand warrants, the Court can resort to variants of a living constitutionalist interpretation. This lack of rigidity allows for an enduring constitution.

In discussing the criticism levelled against this approach, Justice Chelameswar also takes the opportunity to issue two specific and relevant warnings: that the adaptability of this approach cannot be equated to a lack of discipline in judicial reasoning, and that it does not imply violence being perpetrated on the text, for it is the text that should acquire the requisite interpretative hues (K Puttaswamy v Union of India 2017b: para 12). The latter caution has been highlighted by him in his now famous and brilliant dissent in Supreme Court Advocates-on-Record Assn v Union of India (2016), better known as the NJAC (National Judicial Appointments Commission) case.

In expounding this approach to constitutional theory and philosophy, we must also note the importance of what Justice Chelameswar’s judgment in the Puttaswamy case does not contain, being the only judgment in the case that provides a source of power within the four walls of the Constitution. Significantly, as noted by legal scholar Gautam Bhatia (2017), Justice Chelameswar does not use the phrase “natural rights” or “natural law.” This seems to be a conscious and deliberate omission since natural law has historically drawn from an external source of morality or religious doctrine.

Instead, he suggests that the requisite externalities can be drawn from the history preceding the case. This history is a product of various forces emanating from religious, economic, and political events. But, it is not static, as can be evidenced in the clarifying footnote 35, since the forces contributing to its creation are, in his view, dynamic and wide enough to take into account even contemporaneous developments in science and technology (K Puttaswamy v Union of India 2017b: para 18). In Justice Chelameswar’s philosophy of living constitutionalism, there is no need for the Constitution to depend on an external ventilator. Instead, he prescribes a yogic method based in pranayama or controlled breathing for the future of the Constitution.

From Steady State to Dark Matter

This discovery of “dark matter” in the Indian Constitution is also a coming of age of Indian constitutional theory: we now have a working model for our constitutional universe. It is all the more remarkable since we started out on this journey with more of a steady state model2 of the Constitution.

In its infancy, the Court not only refused to recognise any spirit of the Constitution that could not be deduced from the express text, but went to the extent of holding that the various articles of the Constitution should be read in isolation as complete and self-contained codes in what Justice Chandrachud in his main judgment has called the Gopalan doctrine of seeing the fundamental rights as isolated silos (K Puttaswamy v Union of India 2017a: Section D, para 19; A K Gopalan v State of Madras 1950). It was only in the Constitution’s 15th year that the Court first murmured the language of rebellion in the minority judgments of Justices Mudholkar and Hidayatullah in Sajjan Singh v State of Rajasthan (1965), which cast doubt on the conclusions of Shankari Prasad v Union of India (1951) on the question of the constitutionality of amending the fundamental rights. On the eve of the Constitution’s adulthood, the Court stretched it to its absolute textual limits in Golaknath v State of Punjab (1967), forcing Justice Hidayatullah to observe in conclusion that he hoped “that the fundamental rights will be able to withstand the pressure of textual readings by ‘the depth and toughness of their roots.’”

In the Cooper case, the Court finally overruled the Gopalan doctrine (as has been confirmed now unanimously in K Puttaswamy v Union of India [2017a]) and held that:

Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights.

The sentinels on the qui vive were no longer content to stand guard at the doors and watch the edifice crumble behind them. However, they soon realised that the inflexibility that the reinforcing beams provided in the Golaknath case was a hindrance, and inadequate to the task of restoration, restructuration, and renovation.

Finally, in the Kesavananda Bharati case (1973), the Court by a razor-slim majority settled for the elasticity of the basic structure doctrine, which Justice Chelameswar calls “the most outstanding and brilliant exposition of the ‘dark matter’” of the Constitution (K Puttaswamy v Union of India 2017b: para 13).

Having supplied the ideological mooring, he has also given the Court an opportunity to revisit some of the developments to the basic structure doctrine since the Kesavananda Bharati case. Based on this premise, it is possible that a judgment in the near future will bring consistency and clarity to the basic structure doctrine in the same manner as the judgments of Justices Chandrachud and Nariman have accomplished for the constitutional right to privacy (K Puttaswamy v Union of India 2017a).

Conclusions

In incorporating the theory of dark matter into the Constitution, Justice Chelameswar seeks the judicial equivalent of the philosopher’s stone or a theory of everything, a magical theory that would explain everything. There is an inevitable futility in such pursuits, but nevertheless a valuable purpose may still be served if the theory can capture the imagination of future judges and lawyers, just as the search for a theory of everything once captured the imagination of the scientific philosophers from ancient Greece right up to the present time.

The words of Stephen Hawking, the pre-eminent physicist of our times, who began his journey in search of a theory of everything, but changed his mind later, could offer some succour for the future:

Some people will be very disappointed if there is not an ultimate theory that can be formulated as a finite number of principles. I used to belong to that camp, but I have changed my mind. I’m now glad that our search for understanding will never come to an end, and that we will always have the challenge of new discovery. Without it, we would stagnate. (Hawking 2002)

It is in this spirit that we should accept this theory of dark matter in its application to the Constitution. It has filled the vital gaps in our understanding of our constitutional universe from the time of the advent of the basic structure doctrine. However, the Puttaswamy judgment, like our Constitution, will be only as good as the persons who will build on it.

Notes

1 The phrase “dark matter” (matière obscure in the original French) was first used by French mathematician and physicist Henri Poincaré, but he attributed it to the earlier work of Scottish–Irish physicist Lord Kelvin (1881), and mentioned it only to dispute his conclusions and held that “there is no dark matter, or at least not so much as there is of shining matter.” Dark matter would not find acceptance till the pioneering work of American astronomer Vera Rubin in 1970, much after Vivian Bose’s judgment in State of West Bengal v Anwar Ali Sarkar (1952).

2 The steady state theory is an alternative to the big bang model of the evolution of the universe. In the steady state theory, the density of matter in the expanding universe remains constant due to a continuous creation of matter, thus adhering to the perfect cosmological principle, a principle that asserts that the observable universe is basically the same at any time as well as at any place.

References

A K Gopalan v State of Madras (1950): AIR, SC, p 27.

Andhyarujina, T R (2011): The Kesavananda Bharati Case: The Untold Story of the Struggle for Supremacy by Supreme Court and Parliament, New Delhi: Universal Law Publishing Company.

Bhatia, Gautam (2017): “The Supreme Court’s Right to Privacy Judgment–IX: Living Constitutionalism, Natural Law, and Other Interpretive Issues,” 8 September, viewed on 21 October 2016, https://indconlawphil.wordpress.com/2017/09/08/the-supreme-courts-right-....

Golaknath v State of Punjab (1967): AIR, SC, p 1643.

Hawking, Stephen (2002): “Godel and the End of Physics,” viewed on 21 October 2016, http://www.hawking.org.uk/godel-and-the-end-of-physics.html.

Holmes, Oliver Wendell, Jr (1881): The Common Law, Boston: Little Brown and Company.

Indira Nehru Gandhi v Raj Narain (1975a): SCC Supp, SC, p 1 (Khanna, J, concurring).

(1975b): SCC Supp, SC, p 1 (Mathew, J, concurring).

K Puttaswamy v Union of India (2017a): SCC
Online, SC, 996 (plurality opinion).

(2017b): SCC Online, SC, 996 (Chelameswar, J, concurring).

Kesavananda Bharati v State of Kerala (1973): SCC, SC, 4, p 225.

Palkhivala, N A (1973): “Fundamental Rights Case: Comment” (1973) 4 SCC Journal 57.

Republic of Italy v Union of India (2013): SCC, SC, 4, p 721.

Rustom Cavasjee Cooper v Union of India (1970): AIR, SC, p 564.

Sajjan Singh v State of Rajasthan (1965): AIR, SC,
p 845.

Shankari Prasad v Union of India (1951): AIR, SC,
p 455.

State of West Bengal v Anwar Ali Sarkar (1952): AIR, SC, p 75.

Supreme Court Advocates-on-Record Assn v Union of India (2016): SCC, SC, 5, p 1.

Suresh Kumar Koushal v Naz Foundation (2014): SCC, SC, 1, p 1.

Swaminathan, Shivprasad (2013): “India’s Benign Constitutional Revolution,” Hindu, 26 January, viewed on 21 October 2016, http://www.thehindu.com/opinion/lead/India%E2%80% 99s-benign-constitutional-revolution/article 12318419.ece.

Tribe, Laurence H (2008): The Invisible Constitution, New York: Oxford University Press.

Updated On : 27th Dec, 2017

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