The Hindu Business Line : Judiciary and Legislature

The framers of the Constitution considered it undesirable to give unfettered powers to the Legislature. Judicial review was set as a check. Yet, far from the Judiciary indulging in making or restating the law, it is the Legislature that has often been seen to be interfering in the judicial process. On quite a few occasions Parliament has chosen to overrule court decisions. The country can afford to denigrate Judiciary at its own peril.

"A government which holds the life, the liberty and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. The momentous significance of the Supreme Court's recent judgment is that it will save our people from such despotism in the in uncertain future... "

— N. A. Palkhiwala in `We, the People'

NOT FOR the first time that a judicial ruling is being sought to be set at naught by the Executive and the Legislature. The judgment on the autonomy for private professional colleges has led to a knee-jerk reaction from the socio-political classes engaged in competitive populism and out to monopolise caste-based vote banks at the expense of minority castes and communities dubbed as the forward class.

In 1987, the Supreme Court observed: "If the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it, it would sound the death-knell of the rule of the law."

In yet another instance relating to a Karnataka law that armed the State government with the right to overrule the verdict of the Court on the sharing of the Cauvery waters, the apex court held: "Such an act on the part of the legislature amounts to exercising the judicial power of the state and to functioning as an appellate court or tribunal".

Deterrent on Legislature

"The written Constitution in India acts as a deterrent on the powers of the legislature. Any talk about the sovereignty or omnipotence of Parliament in the Dicean sense or any reliance upon British Precedents, founded upon an absence of separation of functions between the Legislature and the Judiciary will be of no avail" (Jawaharlal Nehru's Speech Vol.IX CAD. 1195).

The written Constitution, by which we have crafted the Parliamentary system, subjects the Legislature to manifold limitations — by distributing the legislative power between the Union and the State legislature, by adopting a justiciable Bill of Rights, and by embodying in the Constitution other substantive and mandatory provisions that operate as curbs upon every organ of the state and which are enforceable by the courts to invalidate laws that may transgress upon any such limitations.

An `independent'

The Legislative arm of the state often considers the Judiciary an impediment to social change in the manner visualised by the ruling class. The impediment, if any, is built into the Constitutional mechanism itself when it declared the fundamental rights inviolate. A court cannot be faulted if it thinks that the rights described as fundamental are a necessary consequence of the declaration in the Preamble that the people of India have solemnly resolved to constitute India into a Sovereign Democratic Republic.

These fundamental rights have not been put into the Constitution merely for individual benefits, though ultimately they come into operation in considering individual rights.

They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law enacted as a matter of constitutional policy (AIR 1955 SC 123). The framers of the Constitution considered it undesirable to give unfettered powers to the Legislature. Judicial review works as a check. It has been said that the American Bill of Rights is what the courts make it. Problems are examined by the court not merely in semantics but in the broader and more appropriate context of the constitutional scheme which aims at affording the individual the fullest protection of his basic rights and on that foundation to erect a structure of a truly democratic polity.

The validity of the state action must be adjudged in the light of its operation upon the rights of the individual and groups of individuals in all their dimensions (R. C. Cooper vs. Union of India). The independence and the integrity of the Judiciary are the hallmarks of a civilised society.

There have been arguments especially in the United Kingdom and the United States that judges are drawn from a narrow social strata and cannot be expected to give a fair hearing to the poor or to ethic minorities, or that they are biased in favour of individualism against collectivism.

But it has never been satisfactorily shown that judges are systematically biased in the ways suggested.

Courts overruled

Far from the Judiciary indulging in making or restating the law, it is the Legislature that has often been seen to be interfering in the judicial process by hurling threats. The Constitution requires constant updating. On quite a few occasions Parliament has chosen to over-rule court decisions. The spate of amendments led to the comment that the Indian Constitution is almost a flexible document undergoing annual amendments. America is still debating the role of `constructionists' on the Federal Bench and many in America are ruing the loose ruling of the Federal Court which, by one vote, stopped in Florida the counting of ballots for the US Presidentship and handed over the office to Mr George W. Bush in 2000.

India can be proud of the traditions set by the Supreme Court. Its rulings are quoted with approval by courts in the US and the UK. Mr Justice William O. Douglas, an American ludge who served for long in the US Supreme court, titled his Tagore Law Lectures 1955 as "From Marshall to Mukherjea — A Tribute to Justice B. K. Mukherjea."

The political class was happy that Mandal was upheld by the court but expressed its resentment against the doctrine of creamy layer, propounded by the court in the same judgment. The oppressed classes are still made to carry night soil in Bihar, UP, Rajasthan and Madhya Pradesh.

Lenin said it all about democracy: "A democratic Republic with universal suffrage was the best instrument capitalist tyranny could possess."

He pointed out that this was also the view of Marx and Engels. Universal suffrage in a capitalist democracy, he said, is simply not capable of expressing the will of the working class and ensuring its realisation; but the bourgeoisie taking advantage of the belief of the people that it does, can deceive them into believing themselves not exploited, can even deceive them into reaction against the proletarian social order.

Our democratic polity requires the healing touch and the considered wisdom of those adorning the Supreme Court Bench to guide us to sober times and overcome the passions of the day. We need co-operation and not confrontation. We can afford to denigrate the Judiciary only at our own peril.

(The author is a former chief commissioner of Income Tax.)

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