Ostensibly, if the statements of various Parliamentarians on the point and assertions of the Supreme Court expressed vide various judgments like ‘sky is the limit of our powers’ (which are stated to be capable of being exercised to pass any order in the interest of justice, even if it means bypassing statutory provisions) are to be believed, there appears to be a ‘conflict’ or ‘creative tension’ between the two most important pillars of Indian system of governance. So it is natural to first understand whether there is ‘conflict or ‘creative tension’ between the two. There is a ‘conflict’, when two or more views points (aka ideologies) are at loggerheads coupled with respective action plans and backed by determination to achieve their respective logical conclusions. But if the difference in view points and methodologies are for the achievement of a common objective it can be called ‘creative tension’. This story is an attempt to understand the strands of morality, legality and common sense in the Supremacy of Parliament or Judiciary debate.
As such, I have nothing personal against constituents of our Political Class at the Individual level. They all are as much citizens of India as everybody else is; ethnically speaking they come from the same rich, religious, linguistic, and cultural, diversity that India is acclaimed for world over. They breathe the same air as all of us do. They are as much patriots as any Indian would claim to be. Their omissions and commissions may be good for their own political survival and well being but the collective impact of all those omissions and commissions as such for the nation is not taking us anywhere closer to all those ideals of peace prosperity and harmony that they go thumping their chests about. As we can see the problems of mass hunger & poverty, illiteracy & backwardness and bitter & bloody communal divide that India inherited at its freedom still continue to haunt us. And our political class through various mechanisms continue to renege on their promises held out in their political manifestos. The hard fact of life that common people are still getting murdered in the name of religion, Muzaffarnagar riots is the latest example in a series of about 100 communal riots that have taken place under the present dispensation in Uttar Pradesh. Legislators in general and Congress Party-led UPA appear in a self congratulatory mood as they have been able to legislate food security law which is a sure shot guarantee for immediate political gains. But this law has heaped untold indignities on the souls of millions of hungry Indians as even after 66 years of Independence they are only being entitled and not enabled to earn a dignified living.
As our esteemed politicians’ entire focus seems to be on the issue as to how to strengthen their stranglehold on the institutions of governance in this country, enabling the population, educating it and governing it in the spirit of public service seem to be simply absent from their minds. Mind you, they are already quite successful in doing so.
As they have, over a period of these 66 years, evolved very sophisticated mechanisms to brushing any real problem under the carpet by constituting a judicial or other commission to study it, allowing it to take years to submit its report and finally when the report is submitted it is used as a mattress to simply keep sleeping over those reports. For example, just think whatever has happened to the first and second administrative reforms commission reports — Justice Malimath committee report on correcting the ills of criminal justice system and most importantly police reforms suggested by the various Commissions. Whenever such inaction is brought before higher courts and the courts issue certain directions, they are sought to be avoided through different means.
The latest example in this series of inaction even on the directions of Supreme Court, as reported in August 2013 in ‘The Times of India’, where Maharashtra government has opposed the implementation of directions given in Prakash Singh Judgment to bring in police reforms. The objection reads: “All the directions contained in Prakash Singh’s case relate to the executive powers and functions of the state government and they can only be exercised by the governor on the aid and advice of council of ministers. This is basic constitutional scheme and, therefore, recommendation of any authority can never be binding on the state government.”
Following is the brief account of unabated subversion of Institutions and manipulation of citizens to illustrate as to how our political class, slowly but surely, has managed and manipulated the populace, entrepreneurs and all the institutions of governance to end up serving their narrow vested interests of perpetuating political power through endless manipulative tricks:
Convicted law makers can continue to retain their Seats: The attempt to defeat the ratio of the Judgment in Lily Thomas Case is another instance which so clearly demonstrates the self-seeking, grossly immoral act of legislators that any claim of Parliamentary supremacy is defeated on the moral grounds with the introduction of the Representation of the People (Amendment and Validation) Bill, 2013.
Keeping Political Parties out of RTI Ambit: Isn’t it remarkable that, the current Lok Sabha, made news not for its legislative function but due to it being stalled in every session, except the last one which only ended up producing mostly self-serving legislations, as it was not allowed to function for the larger part of its term. The reasons dished out were ”political fractiousness” or ”fractured polity” on the issues major economic reforms that would have helped the economy greatly and thereby generated a lot of wealth and the govt. would only have to bother about ensuring its equitable distribution.
CAG, the national auditor, instead of being commended for pinpointing irregularities has been criticized and sought to be discredited by questioning the very basis of its analysis of the alleged irregularities publicly.
Political Parties and Legislature (Parliament and State Assemblies): Political parties barring BJP to a larger extent, most of the parties have broadly acquired dynastic ways and as a result the legislatures are turning increasingly into private club, thanks to dynastic politics. Mint newspaper and Seminar June 2011 issue on dynastic politics may be referred to for more reference on this point.
Bureaucracy (Khemkas/DurgaShaktis) marginalised: It is ensured that India’s famed steel frame must rust or make itself malleable enough to comply by the diktats of the ruling dispensations. The lone idealist rangers like the Khemkas and DurgaShaktis of the bureaucratic world will be marginalised and turned into examples so that no one dare its duty by the book.
Government Offices Files (coal block allocation to be specific) vanish without trace.
Government Schools: Whosoever is capable of does not want to send his children to the government schools. Because first, they are not sure whether the teachers will be there in the classes or not If they are, then 3-4 classes will be clubbed in a single room and nobody knows which class is being taught and thirdly, he is not sure whether his children will be able to survive gross irregularities in the mid day meal scheme as recently happened in Bihar.
State-run Hospitals: One may never think of going to a Govt. Hospital because ward boys may be there to act as doctors as was recently witnessed in Bulandshahr’s BabuBanarasi Das District Hospital in U.P.
Judiciary, Still Continue to Inspire Hope for Justice On the other hand the Judiciary is the only -institution in the country which, thanks to constitutional scheme of things and historical courage of some brilliant individuals, has managed to escape this decaying touch (as opposed to the midas touch) of our political class. Otherwise, our shrewd political class has been able to manage all the challenge to their authority with impunity. And if there is still some hope for justice, it is because of our judicial System, which by and large has remained accessible to even the weakest sections of the population. Though over a period of time some complacency has set in and which may have led to self-righteousness inspired arrogance yet it is the only institution, because of its inherent design of arguments in writing and decisions in. open court- it has largely been able to successfully enforce liberty, equality and fraternity amongst people of India in a transparent manner.
The first amendment to the Constitution of India in 1951 marked the beginning of creative tension between the then Pandit Nehru government and the Supreme Court. To overcome, the problem of invalidation of Zamindari abolition laws by the Courts Article 31-B and Ninth Schedule was inserted in the Constitution. The Ninth Schedule pursuant to article 31-B contained all those laws which the Parliament wanted from being invalidated by the Supreme Court. This creative tension remained largely uncyrstallised till Keshavananda Bharti Judgment with its Doctrine of Basis Structure of the Constitution was not pronounced.
Post Keshavananda Bharti, many judicial interpretations made principles of natural justice as the touchstone for judging administrative action; introduction of the collegium system as the preferred mode of judicial appointments to the higher judiciary. Out of the two major interpretative streams of judicial pronouncements, while the first one directly brought about almost all the policy decisions of the government within the purview of the Judiciary while the latter one made judiciary almost independent in the matter of judicial appointments. The statement by Kapil Sibal, the Law Minister, that “There is a general negative perception in the country that all politicians are criminals… Courts are enthusiastic to prove us so, even if we are not so,” while moving the Representation of the People (Amendment and Validation) Bill, 2013, is reflective of the growing anxiety of politicians with the approach of the court regarding some key issues which have the potential to seriously influence electoral outcomes.
The Collegium System of Appointments has evolved over a period of several years due to certain instances in our constitutional history where there were instances of executive high handedness in judicial appointments. And this has been thought initially to be important from the perspective that for a truly independent Judiciary such a system may be desirable. But like everything, any system, created with howsoever noble intentions, will develop niggles. This system is criticized for the reason that it does not strictly conform to the scheme of judicial appointments as was envisaged under the Constitution. The other important criticism against this system is lack of transparency and there have been certain controversial appointments which had to be cancelled. Now the collegium system, is being sought to be replaced by a Judicial Appointments Commission and a Bill in this regard has already been introduced in the Parliament.
For long, due to the lack of policy level consensus on major policy initiatives, the consensus has been lacking amongst the P-parliament. Such lack of consensus has been instrumental in getting such lack of consensus adjudicated upon through judicial process. And PILs have been the preferred mode of doing so and generally courts end up intervening in a lot of policy decisions. These interventions at times have been criticized for policy uncertainty.
Late Justice J.S. Verma, the former Chief Justice of India, had raised very pertinent questions on the issue of judicial activism vs. overreach in his excerpted speech to a University as published in 2007 in ‘The Indian Express’ newspaper, titled ‘The Constitution does not envisage judicial review as the only way to correct every wrong’. Justice Verma specifically stated: “The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large-scale sealing operations of commercial premises in unauthorised areas of Delhi.
The implications of the judiciary’s involvement in this process, which is essentially an executive function, are wide… judicial intervention may attract the vice of ad hocism or tyranny. It would then suffer from the defect of want of juristic base to have precedent value. Inconsistency of decisions in such matters resulting in discrimination is another aspect. Want of legitimacy of judicial intervention is the casualty. These pitfalls must be avoided
The Judicial Accountability Bill which is pending before the Parliament is another such legislation which seeks to curb uncalled for comments from the judges while hearing cases and also to create a mechanism so that allegations of impropriety against judges are also addressed.
Many believe that the comments from judges at times cause embarrassment for the government and also that impeachment procedure to ensure judicial accountability in the wake of impropriety has also failed its utility test.
The issues of Moral and Legal legitimacy of the authority of the judiciary have for long been surrounded around the argument that since legislators are elected representatives of the people as a result they have more legitimacy than unelected Judges.
Since the entire structure of Indian State is a creation of the Constitution, so the “legitimacy” of their very being must also be derived from the criteria laid down in the Constitution. So, if the constitutional prescription for legitimacy of legislature’s authority is in winning elections, similarly judiciary’s authority must also be derived from the procedure Constitution.
We all know that the three most important pillars of the Indian State have been assigned respective roles and have been empowered for the fulfillment of those roles by the Constitution of India itself. Their overarching role has been indicated generally in the Preamble to the Constitution and more specifically in the various chapters of the Constitution.
So be it the Executive or the Parliament or the Judiciary, all are the creation of the Constitution and therefore the very thought of supremacy of any of them is an absurdity ab initio.
Raju Ramachandran, the Senior Advocate at Supreme Court, in an article in ‘Seminar’, titled “Judicial Supremacy and the Collegium” preferred checks and balances as the answer to the supremacy debate as he wrote: “Apart from the self-conferred power to strike down amendments to the Constitution, the superior courts have the power to strike down laws made by Parliament and the state legislatures. Laws can be struck down on two grounds: if they violate fundamental rights, or if the concerned legislature lacks ‘legislative competence’ (for instance, a Union law is made on a subject which falls within the state list, or a state law is made on a subject which falls within the Union list). This is a necessary feature of a system of checks and balances. But our judges are not elected and once appointed, are virtually irremovable. Surely, the system of checks and balances must apply to the pro cess of judicial appointments. This must necessarily involve the legislature and the executive.”
Whether there is creative tension or conflict between legislature and judiciary, that I leave open to our esteemed readers to conclude. But the sole objective that any person inhabiting the longitude and latitude of this historically great, demographically young and economically aspiring nation should be the realisation of our Constitutional prayer as contained in the Preamble thereto and entails acertain Karma. The contours of that Karma, through which India can become modern, peaceful and prosperous nation was dreamt over a long freedom struggle, bitter and bloody partition, captured and crystallized by the drafting and adoption of a well meaning constitution. And we all will be well served if all the institutions of governance (including executive, legislature and judiciary) act with purpose, within the scope of their powers laid in the Constitution and self restraint.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
