The Independence of Justice from Law

The qualification. The standard is internal to the Constitution. It is the Constitution's own scheme as the Court reads it, not natural law at large. An Indian judge may not hold a statute void because he thinks it unjust; he must locate the defect in a constitutional provision or in the basic structure. That is what keeps the doctrine from being a licence.

The application against ordinary law. Article 13(2) with Article 32. A law inconsistent with Part III is void, which means enactment does not confer validity.

The application at the highest level. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.

Facts. The Allahabad High Court set aside the election of the Prime Minister on 12 June 1975, holding that she had committed corrupt practice by obtaining the assistance of a gazetted officer, and disqualified her for six years. While her appeal was pending, the Constitution (Thirty-ninth Amendment) Act 1975 inserted Article 329A, clause (4) of which purported to declare that her election could not be called in question in any court and that the pending appeal would abate.

Held. The appeal succeeded on the merits under the amended election law, but clause (4) of Article 329A was struck down as destructive of the basic structure. It did not amend the election law; it decided a particular dispute by constitutional fiat, withdrawing it from every court, and so violated the rule of law, free and fair elections, and the separation of the judicial function from the legislative.

Why it matters here. The amendment was formally valid in every respect and was still held void, because it offended a standard the amending procedure could not satisfy. Nothing demonstrates the independence position more sharply.

The strengths

It gives the victim of an unjust law a remedy, which the dependency position cannot.

It explains why we criticise laws, which the equivalence position cannot.

It accounts for the historical facts. Nuremberg, the invalidation of apartheid legislation, and the Indian basic structure doctrine all presuppose a standard beyond enactment.

It matches the Indian constitutional text. Article 13 says that an inconsistent law is void; that is the independence structure in a provision.

The criticisms

1. Who decides what justice requires? The standard is not self-applying, so somebody must state it, and in India that is five judges. The counter-majoritarian objection in [The Limits of Judicial Activism and the Charge of Overreach] is at its strongest here.

2. It is indeterminate. The content of natural law has been disputed for two thousand years, and the content of the basic structure has never been listed exhaustively.

3. It endangers certainty. If a valid enactment may be defective, nobody can know in advance what the law is.

4. It has been used badly. Appeals to a higher law have justified resistance to legitimate reform as often as resistance to tyranny.

5. The Indian version is judicially created. The basic structure is nowhere in the text, so the standard by which enactments are judged was itself supplied by the body applying it.

The three positions compared, for the last time

A worked example

Parliament amends the Constitution to abolish elections to a State legislature and to provide for nomination by the Union.

On equivalence. The amendment was passed by the required majorities; it is valid; there is nothing further to say.

On dependency. It may be unjust, and the remedy is political: elect a Parliament that will reverse it.

On independence. Free and fair elections and the democratic form of government are part of the basic structure, as Indira Nehru Gandhi v. Raj Narain holds, so the amendment is void, and a court will say so.

Which position Indian law takes. The third. And the qualification matters: the court does not say the amendment is unjust, it says it damages a basic feature, which is a constitutional standard rather than a moral one.

Quick revision

1. Independence: justice is prior to and independent of law, and measures it. An unjust law is defective as law.
2. Moderate form, usable by a lawyer: a grave departure deprives a law of the obedience it would otherwise command.
3. Traditions: natural law; raja dharma, dharma is the king of kings; and the Indian basic structure doctrine.
4. Kesavananda is the commitment; Article 13 with Article 32 is the application to ordinary law; Indira Nehru Gandhi is the application at the highest level.
5. The qualification: the standard is internal to the Constitution, not natural law at large, so a judge may not strike down a law merely because he thinks it unjust.
6. Strengths: a remedy for the victim; it explains criticism of law; it fits the historical record; it matches Article 13.
7. Criticisms: who decides; indeterminacy; loss of certainty; misuse; and the Indian standard is judicially created.

Test yourself

1. State the independence position and its moderate form. That justice exists prior to and independently of positive law and is the standard by which law is judged, so that a law contrary to justice is defective as law. The moderate form, which a lawyer can use, is that a law is defective to the extent that it departs from the standard, and that a sufficiently grave departure deprives it of the obedience it would otherwise command, which avoids the difficulty of denying that a plainly enacted rule exists at all.

2. What is the Indian qualification, and why does it matter? That the standard is internal to the Constitution: it is the Constitution's own scheme as the Court reads it, including the basic structure, and not natural law at large. It matters because it prevents the doctrine from becoming a licence: an Indian judge may not hold a statute void because he thinks it unjust, but only because he can locate the defect in a constitutional provision or in a basic feature.

3. Why is Indira Nehru Gandhi the sharpest demonstration of the position? Because the amendment was formally valid in every respect, having been passed by the required majorities, and was still held void. Clause (4) of Article 329A did not amend the election law but decided a particular dispute by constitutional fiat and withdrew it from every court, offending the rule of law, free and fair elections and the separation of the judicial function from the legislative. A standard beyond enactment was applied against the most deliberate exercise of legislative power available.

4. Compare the dangers of the three positions. Equivalence risks tyranny defended as law, since whatever is enacted is by definition just. Dependency risks injustice tolerated indefinitely, since the victim of an unjust law must wait for a legislature to act. Independence risks government by judges, since the standard is not self-applying and whoever states it exercises a very large power over the elected branches.