இரண்டு நாட்கள் முன் (15-06-2015) தினமணி கட்டுரையில் வெளிவந்த என்னுடைய பத்தியான மேக்ன கார்ட்டா பற்றிய பதிவின் தொடர்ச்சியாக இந்தப் பதிவு.
‘Does Magna Carta mean nothing to you? Did she die in vain?’ — so joked comedian Tony Hancock (1924-68) in Hancock’s Half Hour back in the 1950s.
Clearly not. Far from dying, Magna Carta has had a life longer, fuller and more influential than the most optimistic medieval baron could have ever imagined.
As the 800th anniversary of the Magna Carta is being celebrated today in Runnymede in grand opulence, it is worth revisiting how relevant the ‘Great Charter’ still is.
It is relatively dense and sprawling, as these things go — neither very long, nor very elegantly written, just 3,500 words or so of Medieval Latin crammed illegibly onto a single page of stretched and dried sheepskin.
But Magna Carta, presented by 40 indignant English barons to their treacherous king, John, 800 years back to this day in the year 1215 has endured ever since as perhaps the world’s first declaration of the principle of rule of law, a thrilling instance of a people’s limiting their ruler’s power by demanding rights for themselves.
But how come a charter from 1215 which was declared null and void by Pope Innocent III within weeks of its being written (as it had been dragged from King John under duress), come to acquire such an iconic status today, and why is it seen as the foundation of our liberties and our law?
At its heart is the idea that the law is not simply the whim of the king, or the government. Magna Carta established for the first time the principle that everybody, including the king, was subject to the law. It is the great egalitarian legacy of Magna Carta, that all are equal under the law, and all can be held to account. It is that idea that gave birth to so many of our rights and freedoms, to parliamentary democracy, fair trial, and a series of controls on the abuse of arbitrary power.
Magna Carta is a cornerstone of the individual liberties that we enjoy, and it presents an ongoing challenge to arbitrary rule. But over time, while not envisaged at the time of its drafting, Magna Carta has for many been seen not only as a foundation of liberty, but also one of democracy. And this broader notion of the wider significance of Magna Carta makes it especially relevant today. It is perhaps easiest to think of Magna Carta in two ways: first, as a document of historical and legal significance; and secondly, as a principle underlying how we live, through equality under the rule of law and through accountability. Magna Carta matters both for what it said in 1215 and, perhaps more significantly now, for what it has come to symbolise.
In 1215 Magna Carta was a peace treaty between the King and the rebel barons. In that respect it was a failure, but it provided a new framework for the relationship between the King and his subjects. The 1225 version of Magna Carta, freely issued by Henry III (r.1216-72) took this idea further and became the definitive version of the text. Three clauses of the 1225 Magna Carta remain on the statute book today. Although most of the clauses of Magna Carta have now been repealed, the many divergent uses that have been made of it since the Middle Ages have shaped its meaning in the modern era, and it has become a potent, international rallying cry against the arbitrary use of power.
One defends the liberties and rights of the English Church, another confirms the liberties and customs of London and other towns, but the third is the most famous and most relevant today: No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice. This clause gave all free men the right to justice and a fair trial.
Buried deep in Magna Carta, this clause was given no particular prominence in 1215, but its intrinsic adaptability has allowed succeeding generations to reinterpret it for their own purposes.
Clauses 39 and 40 which forbade the sale of justice and insist upon due legal process retain ‘the power to make the blood race’, to echo Lord Bingham (1933-2010).
From these two clauses sprang not just the principle of habeas corpus (that the accused are not to be held indefinitely without trial), but the idea of the right to trial by jury (by the accused’s ‘peers’). Even the presumption of innocence pending conviction can be traced back to the provisions of clause 40 of the Magna Carta. From clause 14 of the Magna Carta springs the idea of no taxation without representation, and with it the establishment of a common council, duly embodied in Parliament, as a means of obtaining popular consent.
From this principle of the rule of law and equality before the law comes the inspiration for declarations of human rights. Historically, we can point to the Bill of Rights of 1689 in Britain, the Declaration of the Rights of Man and the Citizen of 1789 in France, and the Bill of Rights in the United States in 1791. In the 20th century, there were many further examples. Most famous, of course, is the Universal Declaration of Human Rights (UDHR) adopted in 1948, and in 1951, Britain was the first signatory to the European Convention on Human Rights (ECHR). And, while British parliamentarians, and judges have long taken account of the European Convention, it was finally incorporated into British law with the Human Rights Act of 1998.
In the United States of America, Magna Carta has informed both the Declaration of Independence and the American Constitution and is held in almost legendary esteem.
Some people deride the importance given to Magna Carta and say that it is the myth rather than the actual text that can be said to be the foundation of liberty and rule of law in the English speaking world. It has to be admitted that the Magna Carta was not as broad in scope as any of provisions in the UDHR or the ECHR and such other instruments but the key is to recognize that the ideas rooted in Magna Carta were an inspiration for them.
So while many clauses of Magna Carta seem irrelevant now and indeed the vast majority are no longer on the statute book, it is not an exaggeration to suggest that Magna Carta forms the basis of the freedoms and liberties we now enjoy Magna Carta can also be seen as a foundation of accountability, of popular democracy, and even of the importance of engaged citizens. The fact that Magna Carta had precious little (if indeed anything at all) to say about these things is to miss the point. Historians have shown that, over time, different generations reinterpreted Magna Carta’s meaning to match the dominant ideas of their age.
Magna Carta was fundamentally about the law being pre-eminent, and in the context of arbitrary rule by a monarch, that made good sense. But as the sovereignty of the elected Parliament developed after 1688, then the question of the balance of power inevitably arose. Should a sovereign parliament be free to repeal laws reflecting the will of the people, or should it be constrained by the law. In other words, was popular sovereignty through Parliament a better guarantor of liberties? From the 19th century onwards, it became clear in Britain that this emphasis was shifting towards Parliament, with many provisions of Magna Carta deleted from the statute book as they were considered obsolete.
Yet, of course, even democratically elected governments drawing on the will of the people can be tyrannical, or at least be perceived as a threat to individual liberties. In Britain, this perception started to grow in the mid-1960s, particularly with concerns that Parliament was increasingly unable to control the executive. But this tension between democracy and liberty is heightened with the increasing involvement of the judiciary. Advocates of parliamentary sovereignty argue that the principle of liberty being above that of democracy politicises unelected and unaccountable judges. Can it be right, they argue, that the will of the people exercised through a democratically elected parliament can be struck down by an unelected judge?
All of these issues are live and ongoing and provide rich areas for debate. So, Magna Carta continues to be of great relevance to us all. It is the foundation of liberty and arguably, ultimately, of democracy.
Closer home, in India, the principle of rule of law is embodied in our Constitution and runs like a golden thread through Part III which guarantees certain Fundamental Rights to Indian citizens and even, non-citizens. In many ways, the Fundamental Rights trace their roots to the Magna Carta.
For example, Article 21 says, “No person shall be deprived of his life or personal liberty except according to procedure established by law”, and Article 14, the equality clause, says, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Article 21, it can be seen, makes no explicit reference to the “due process of law” as was used in the Magna Carta. This is so because the American doctrine of “due process” had been rejected by the framers of the Indian Constitution at the time of its enactment. The fifth and fourteenth amendments to the American Constitution provide that life, liberty and property cannot be deprived without “due process of law.” This phrase, borrowed, from the Magna Carta, acquired a nuanced meaning in the American constitutional context, following years of judicial exposition.
Over time, the phrase acquired “substantive” and “procedural” meanings, each of which enhanced the powers of the judiciary. For example, in exercise of powers conferred by the “due process” clause of the Constitution, American courts would create “new” or unenumerated rights. Most notably, these were the rights to abortion, marriage, homosexuality, the use of contraceptives, child-rearing, and so on.
Interestingly, in the Magna Carta the phrase “due process of law” was meant to curb the powers of the royal judiciary in favour of the feudal baronage, quite contrary to the spirit of judicial activism that is now attributed to the clause.
The Constituent Assembly of India originally included a due process clause in the Fundamental Rights provisions associated with preventive detention and individual
liberty in the initial draft version adopted and published in October of 1947. After this draft version was published, Rau embarked upon a multi-nation trip to the United States, Canada, and Ireland to meet with jurists, constitutional scholars, and other statesmen. In the United States, Rau met Justice Felix Frankfurter, judge of the American Supreme Court . In his meeting with Rau, Frankfurter indicated that he believed that the power of judicial review implied in the due process clause was both undemocratic and burdensome to the judiciary, because it empowered judges to invalidate legislation enacted by democratic majorities.
Consequently, in 1949, the phrase “due process of law” was dropped from the text of what was to become Article 21 of the Indian Constitution, despite strong support for the clause in the sub-committee on fundamental rights.
However, despite there being no textual support in the Constitution to the concept of “due process of law” it found a backdoor entry into Indian constitutional jurisprudence through Justice P.N. Bhagwati’s opinion in the Maneka Gandhi case, wherein it was held that the Constitution mandates “fair” procedure when rights are deprived.
In Maneka Gandhi, it was stated, “The law must therefore, now be taken to be well-settled that Art.21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of “personal liberty” and there is consequently no infringement of the Fundamental Right conferred by Art 21, such law insofar as it abridges or takes away any Fundamental Right under Article 19 would have to meet the challenge of that Article.
This proposition can no longer be disputed after the decisions in R.C. Cooper’s case, Shambu Nath Sarkar’s case and Haradhana Saha’s case. Now if a law depriving a person of ‘personal liberty’ and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the Fundamental Rights conferred under Article 19 which may be applicable in a given situation ex hypothesi, it is also liable to be tested with reference to Article 14.”
Justice Krishna Iyer in his separate but concurring judgment declared that “law is reasonable law, not any enacted piece.”
Although the court would repeatedly hold in subsequent cases that the American standard of “due process” did not apply to the Indian Constitution, in reality the court would apply nothing less than due process standards to administrative and legislative authorities in its emphasis on “fair, just and reasonable” procedure. The ‘procedure established by law’ has thus come to acquire practically the same significance in India as the ‘due process of law’ clause in America. This is borne out by Krishna Iyer J.’s opinion in the Sunil Batra Case (AIR 1978 SC 1675) wherein he held that though the Constitution had no “due process” provision, yet after the Maneka Gandhi Case judgment the consequence was the same.
Thus, it can be said with certainty that constitutional “due process” is here to stay in India. The power of judicial review and recognition of ‘due process’ doctrine has in effect made the judiciary the pre-eminent and arguably the most powerful among the 3 organs of the State in India.
In Kesavananda Bharati and I.R. Coelho v State of Tamil Nadu, the Supreme Court held that ‘rule of law’ is a part of the basic structure of the Constitution with the consequence that it cannot be amended or altered or repealed by a constitutional amendment.
The Courts in India have frequently relied upon the common law principles (derived from the Magna Carta) as an aid to interpretation of the constitution and application of the laws. The common law took firm root in India following the establishment of the High Courts of Judicature at Bombay, Calcutta and Madras in the 19th century. The principles of natural justice, presumption of innocence till proven guilty, and immunity from self-incrimination etc can all be traced to common law principles and maxims which in turn have been inspired from the Magna Carta.
The equality clause combined with the ‘due process’ clause and the recognition of ‘rule of law’ as a basic structure of the constitution have emerged as bulwarks for citizens against arbitrariness and encroachment by the State into the realm of civil liberties protected in Part III of the Constitution. The flame of the Magna Carta continues to burn bright even today and its spirit continues to illumine the understanding and application of law in India and in constitutional democracies elsewhere.
Let’s not think about Magna Carta solely in terms of its medieval and legal history. Those aspects are obviously important. But perhaps most important is what Magna Carta has come to symbolise, even though this was almost certainly not what was envisaged or intended by those who drafted the Great Charter 800 years ago.
The renowned English judge Lord Denning has rightly called the Magna Carta “the greatest constitutional document of all times — the foundation of the freedom of the individual against the arbitrary authority of the despot.” ( Courtesy : live law )
- கே.எஸ். இராதாகிருஷ்ணன்.
17-06-2015.
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