The Hindu Business Line : Judiciary: The whip hand of people

For the people the judiciary is the bulwark of democracy and bastion of civil liberties and before it is blamed for encroaching on the rights of the legislatures, the latter must make sure that they so conduct themselves as to deserve the trust of the people. Who else except the higher judiciary can come to the rescue of "We, the people" who have been reduced to mute witnesses to the trampling of the Constitution and despoiling of the state, asks B. S. Raghavan.

Are not popular assemblies subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? Is it not well known that their determinations are often governed by a few individuals in whom they place confidence and are... liable to be tinctured by the passions and views of those individuals? The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

— Alexander Hamilton, Founding Father of the United States of America

THE above quotation shows that the doctrine of separation of powers evenly among the three co-equal, coordinate branches of government — executive, legislature and judiciary — did not command unreserved acceptance even among the framers of the US Constitution and that the judiciary was considered more equal.

Alexander Hamilton devoted several pages of the Federalist Papers to describing the dangers of legislative supremacy, and wanted limits to be placed on the legislature which, he felt, could be "preserved in no other way than through the medium of the Courts of Justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void." He added emphatically, "Without this, all the reservations of particular rights or privileges would amount to nothing."

Interestingly, however, the version of the US Constitution that was finally voted upon in the Constitutional Convention of 1787 contained not a word conferring any overriding power on the Supreme Court to pronounce on the constitutionality or otherwise of the acts of the other two Branches.

It was sixteen years later, in 1803, that Chief Justice John Marshall, in a brilliant judgment of breathtaking sweep, in Marbury versus Madison, added to the Supreme Court's armoury the ultimate weapon of judicial review to safeguard the rights of the people against the excesses of the legislature and the executive. His arguments were so compelling, so sharply focussed on the ground realities of politics and so deeply rooted in the sentiments of the people and society that they have held the field to this day.

Indeed, the ambit of judicial intervention to keep the executive and legislature on track and at bay has been expanded by the US Supreme Court to a considerable extent in many subsequent judgments.

Degeneracy of legislatures

But for the timely and crucial intervention by the Supreme Court, in that country, there would have been no protection to the accused against police brutalities and no equal rights for African-Americans and whites. President Richard Nixon's resignation following the Watergate revelations was the combined effort of the media and the judiciary.

If it has been found necessary to accord to the judiciary the superordinate watchdog status in a country which has been the model of an open society, and where there is 100 per cent literacy, the electorate and the media are wide awake, and elected representatives and public officials are under the scanner far more scrutinisingly than elsewhere, how much more of an imperative necessity it becomes in a country like India where people are mostly illiterate, and defenceless against the depredations of the political and ruling classes?

The possibility of degeneracy of legislatures was built into the fact that the Constitution did not lay down qualifications for members of the Legislature. This was, in fact, one of the great regrets of India's founding fathers. Rajendra Prasad, presiding over the final session which adopted the Constitution, gave expression to the doubts and fears nagging them as follows: "It is anomalous that we should insist upon high qualifications for those who administer or help in administering the law but none for those who make it except that they are elected.

A law-giver requires intellectual equipment but even more than that capacity to take a balanced view of things to act independently and above all to be true to those fundamental things of life — in one word — to have character. It is not possible to devise any yardstick for measuring the moral qualities of a man and so long as that is not possible, our Constitution will remain defective.

"Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it... If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. "It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences. We can only hope that the country will throw up such men in abundance...In India today I feel that the work that confronts us is even more difficult than the work which we had when we were engaged in the (freedom) struggle. We did not have then any conflicting claims to reconcile, no loaves and fishes to distribute, no powers to share. We have all these now, and the temptations are really great. Would to God that we shall have the wisdom and the strength to rise above them, and to serve the country which we have succeeded in liberating."

Judiciary to the rescue

Alas, this is one hope that has been belied. And who else except the higher judiciary can come to the rescue of "We, the people" who have been reduced to mute witnesses to the trampling of the Constitution and despoiling of the state?

In every one of the issues that intimately touch the well-being of the polity and quality of governance — whether it is assurance of clean air or water, attacking the stranglehold of the criminal and venal elements on the levers of power, shaming such elements into disclosing their astronomical assets and involvement in criminal cases, curtailing five-star luxury facilities for them in prisons, recovering from them crores of rupees in public dues on account of electricity and water bills, evicting the VIP trespassers who have brazenly (mis)appropriated for their personal use for years land and buildings belonging to the people, stopping illegal squandering of public assets to political cronies by imposing hefty fines, curbing the wasting of taxpayers' money in a variety of other innumerable crooked ways — there was no way of making the so-called people's representatives respect public interest except via the strong arm of the judiciary.

In these circumstances, all this talk of rights of legislatures sounds futile, because it is not the right to be good and do good that is at issue, but the right to insult and betray the people who have elected them. In the absence of any kind of accountability on the part of legislators, the judiciary is doing no more than its duty by the hapless, long-suffering people.

It is the judiciary — and the judiciary alone — that has been serving as the whip hand of "We, the people". It is the hope that people still have in the judiciary as the bulwark of democracy and bastion of civil liberties that is acting as the insurance against widespread upheaval. I have heard many talking longingly of a military takeover and fantasising delightedly about the number of grim and gruesome ways the political bad apples will be meted out their just desserts.

My advice to the political class is this: Respected Sires, before you blame the judiciary for encroaching on the rights of the legislatures, make sure that legislatures so conduct themselves as to deserve the trust of the people. See to it that all the prized government bungalows are rid of their encroachers, and all the politicos pay up their dues.

Without hiding behind subterfuges about the accused being innocent until proved guilty, have those charge-sheeted by the judiciary in cases involving heinous crimes thrown out of Councils of Ministers. Disqualify those who indulge in rowdyism (Mr Somnath Chatterji's word when he was sitting in Opposition) in the sacred legislative precincts and waste taxpayers' money by the crores. Stop horse-trading, wheeling-dealing, and pork barrelling for the spoils of office.

This above all: Remember the President, Mr A. P. J. Abdul Kalam's solemn warning: "When politics degrades itself to political adventurism, the nation would be on the calamitous road to inevitable disaster and ruination. Let us not risk it".

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