The Special Dimensions of the Judicial Process
Chapter Twenty-Four
Syllabus topic 2, "Special Dimensions of Judicial Process in Constitutional Adjudications."
Pages 99 to 102 of 356
In one line
Deciding whether a law made by an elected legislature may stand is a different exercise from deciding whether a contract was broken, and Module II is about the ways in which it is different.
In the wording a student can write in an exam: the special dimensions of the judicial process in constitutional adjudication are the respects in which a court deciding a constitutional question does something different in kind from a court deciding an ordinary dispute. They are: the subject matter, which is public power rather than private right; the effect, which is to invalidate the act of another organ of the State rather than to give relief between parties; the material, which is an open-textured text stating values rather than a detailed rule; the method, which admits considerations of principle and consequence that ordinary adjudication excludes; the parties, since the decision governs people who were never before the court; and the finality, since a constitutional ruling can ordinarily be undone only by amendment.
The six dimensions
1. The subject matter is public power. An ordinary suit asks whether A wronged B. A constitutional case asks whether an organ of the State acted within the authority the Constitution gave it. The question is about the validity of power, not the breach of an obligation.
2. The effect is invalidation. An ordinary decree binds the parties. A declaration that a statute is void removes it from the statute book for everybody. In Supreme Court Advocates-on-Record Association v. Union of India, decided on 16 October 2015, a constitutional amendment passed by Parliament and ratified by the States was declared void.
Facts. The Constitution (Ninety-ninth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014 replaced the collegium with a commission of the Chief Justice of India, the two next senior judges of the Supreme Court, the Union Minister of Law and Justice and two eminent persons, with a veto exercisable by any two members. Both were challenged, and the Union asked for the Second and Third Judges cases to be reconsidered by a larger Bench.
Held. By four to one the prayer for reconsideration was rejected; the Constitution (Ninety-ninth Amendment) Act 2014 was declared unconstitutional and void; the National Judicial Appointments Commission Act 2014 was declared unconstitutional and void; and the collegium system as it existed before the amendment was declared operative. Chelameswar J. dissented.
Why it matters here. Nothing in ordinary adjudication resembles this. A court set aside the considered decision of Parliament, of the State legislatures that ratified it, and of the President who assented, and restored an arrangement of its own earlier making.
3. The material is a text of a different kind. Section 73 of the Indian Contract Act tells a court what to do. Article 14 says "equality before the law". The words state a value and leave the rule to be worked out, which is why constitutional adjudication is far more creative than ordinary adjudication and why Module I's methods matter most here.
The Special Dimensions of the Judicial Process
4. The method admits principle and consequence. In an ordinary case a court applies the rule and the consequences are the parties' problem. In a constitutional case the consequences are the point: a construction that would paralyse government or destroy a right is rejected because of what it would do.
5. The parties are not the only people bound. A constitutional decision governs a population that was never heard. This is the source of the democratic objection, and also of the procedural innovations in [Locus Standi and Epistolary Jurisdiction], which try to bring more of the affected population before the court.
6. The finality is different. A wrong decision on a contract can be corrected by Parliament amending the Contract Act. A wrong decision on the Constitution can be corrected only by constitutional amendment, or by the Court itself. This is the reason Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603, gives for being readier to reconsider constitutional decisions.
Why the Indian Constitution makes these dimensions unusually wide
Because it is written and supreme. Where Parliament is sovereign, as in England, the courts cannot invalidate a statute at all.
Because it contains enforceable rights. Part III is justiciable and Article 32 is itself a fundamental right.
Because it contains directive principles that are not enforceable but are fundamental to governance. The relation between Parts III and IV has generated a body of doctrine no other constitution has in quite the same form: see Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, on the balance between them as a basic feature.
Because the amending power is itself limited. After Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, even a constitutional amendment can be struck down, which is the widest form of judicial power in any democracy.
Because standing has been relaxed. After S.P. Gupta v. President of India, AIR 1982 SC 149, a person not himself affected may raise a constitutional question on behalf of those who cannot.
What the special dimensions do not mean
They do not mean the court is unconstrained. The four kinds of limit in [The Limits of Judicial Creativity] apply with particular force here, because the invalidation of a statute is the most intrusive thing a court does.
They do not mean constitutional cases are decided by preference. The text, the precedents and the structure of the Constitution constrain, and the reasons must be published.
The Special Dimensions of the Judicial Process
They do not mean every constitutional case is momentous. Most are routine applications of settled doctrine.
A worked example
A State law reserves eighty per cent of seats in private medical colleges for residents of the State. It is challenged under Articles 14 and 19(1)(g).
An ordinary court deciding a contract would ask what the parties agreed and whether it was performed.
A constitutional court asks a chain of different questions. Is the classification by residence a permissible classification under Article 14? Is the restriction on the college's occupation reasonable under Article 19(6)? Does the reservation serve a directive principle, and how does that bear on reasonableness? What will invalidation do to admissions already made?
The dimensions on display. The subject is the validity of public power; the effect will be to remove the law for everyone; the material is two open-textured articles; the method weighs consequences; the parties before the court are a handful of candidates and a college, while the ruling governs every applicant in the State; and correction, if the Court is wrong, requires an amendment.
What beginners get wrong
"Constitutional adjudication is just adjudication about the Constitution." The subject is different, and so are the effect, the material, the method, the parties bound and the finality. MU's question uses the words "special dimensions" precisely to elicit that.
"The special dimensions are the same as judicial activism." Activism is a description of how far a court goes within these dimensions. The dimensions exist whether the court is activist or restrained.
Quick revision
- Six dimensions: subject matter is public power; effect is invalidation; material is open-textured; method admits principle and consequence; parties bound exceed the parties heard; finality is correctable only by amendment or by the Court.
- The NJAC decision, 16 October 2015, is the extreme instance of the second dimension: a constitutional amendment declared void.
- India widens all six: a written supreme constitution, justiciable rights, Article 32, directive principles, a limited amending power after Kesavananda, and relaxed standing after S.P. Gupta.
- The dimensions do not remove the limits; they make the limits matter more.
- Bengal Immunity gives the finality dimension as a reason for readier reconsideration of constitutional decisions.
Test yourself
1. Name the six special dimensions and state each in a phrase. Subject matter, the validity of public power rather than the breach of a private obligation; effect, invalidation for everyone rather than relief between parties; material, an open-textured text stating values rather than a detailed rule; method, the admission of principle and consequence; parties, since those bound exceed those heard; and finality, since correction ordinarily requires a constitutional amendment.
The Special Dimensions of the Judicial Process
2. Why does the NJAC decision illustrate the second dimension most sharply? Because the Court declared void a constitutional amendment passed by Parliament, ratified by State legislatures and assented to by the President, together with the Act made under it, and restored the collegium. No ordinary adjudication produces an effect of that kind on the acts of the other organs of the State.
3. Give three features of the Indian Constitution that widen these dimensions. That it is written and supreme, so a statute can be invalidated at all, unlike in a system of parliamentary sovereignty; that Part III is justiciable and Article 32 is itself a fundamental right; and that after Kesavananda even a constitutional amendment may be struck down for damaging the basic structure.
4. Why is the finality dimension a reason for the Supreme Court to reconsider its own constitutional decisions more readily? Because an erroneous constitutional interpretation cannot be corrected by ordinary legislation and may be perpetuated or remain unrectified for a long time to the detriment of the public. Bengal Immunity gives exactly this as a distinct reason for departure, over and above error and harmful effect.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.