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Judicial ‘overreach’? Overruled

Freedom for citizens like you and me can only be secured through courts, not through Parliament or executive governments, writes Fali S Nariman.

india Updated: Apr 30, 2007 02:03 IST

In India, the content and reach of judicial power is not defined — neither in our Constitution nor anywhere else. Many believe that a written Constitution that gives power to the courts to strike down legislation made by a country’s elected Parliament is undemocratic: it enables unelected judges (they say) to thwart the wishes of the elected representatives of the people in Parliament. There may be something to be said for this point of view. But it is too late in the day to complain. For more than 57 years, we have been working a Constitution which is federal in nature with allocated subjects of legislation separately and exclusively given to the States and to the Union; there is also a chapter on Fundamental Rights: all laws and all executive actions inconsistent with them are expressly declared to be “void”. Some authority then would have to be the final arbiter — in a controversy. And that arbiter under our Constitution is ultimately the country’s highest court.

It has been said that where there are no judicially manageable standards our courts should not interfere; they should leave it to the elected representatives of the people. This is correct — in theory of course.

After 60 years of Independence, and after 14 general elections to the Lok Sabha, and all the publicity that is given to proceedings in Parliament, ordinary people — people who have voted their elected representatives into Parliament — remain generally unsatisfied as to how MPs function: if and when they function at all!

The reason for what the Prime Minister recently characterised as a “judicial over-reach” is that since power grows by what it feeds on, judicial power also grows by accretion, by the mere circumstance that other constitutional bodies and authorities set up to legislate and to pass administrative orders have failed when called upon to act.

The “judicial over-reach” the Prime Minister spoke about is the direct result of legislative and executive neglect or “under-reach”: poor performance in the making of laws and their execution. If judges need to introspect, politicians also need to introspect and ask themselves whether they have fulfilled the aspirations of the people who put them at the wheel of governance. If judges are to get off the backs of parliamentarians, politicians and bureaucrats, those who claim the right to govern must come up with a much better record of performance: only when they do, will the people of this great country give us back majority governments both at the Centre and in the states.

I do not subscribe to the view that there has to be a “balance of power” amongst the three organs of the State, except for a limited purpose.

But I am definitely of the view that the judicial power, howsoever defined, cannot be trenched on either by Parliament or by the Executive.

Do remember that it was so trenched on when the Ninth Schedule to our Constitution was deliberately added way back by the First Constitution Amendment of 1951 which provided that all laws — whether Central or state — which Parliament chose to put in a schedule to the Constitution, the Ninth Schedule, were to be totally immune from all judicial review. Even if such laws violated fundamental rights and had been struck down by courts, all such laws got automatically revived, and continued as valid! This total denial of judicial power enacted by Article 31B was initially tolerated only because the laws that were initially put in the Ninth Schedule were land reform laws.

But later judgments of the Supreme Court said that laws which were placed in the Ninth Schedule were not confined to land reform laws. And what happened? Taking advantage of this pronouncement by the highest court, the government of the day during the 1975 internal emergency, first put MISA — the dreaded security law — also in the Ninth Schedule, making its noxious provisions impervious to all judicial review; and next enacted the Prevention of Publication of Objectionable Matter Act 1976, an Act to control and muzzle the free Press and put that Act also in the Ninth Schedule!

Freedom — freedom for citizens like you and me — can only be secured through courts, not through Parliament or through executive governments.

Yes, you may criticise this or that judgment of the Supreme Court or of the High Courts which have needlessly interfered in PILs — so-called Public Interest Litigation — with the day-to-day governance of the country which ought be left to the elected representatives. It is such PILs that have given our higher judiciary a bad name.

Of course the Judiciary has to set its own house in order which is the job of the Chief Justice of India to oversee.

Parliament too must — like the Judiciary — set its own house in order. And the fact that it has at the instance of the hon’ble speaker contemplated action with such promptitude in the recent human trafficking scandal in which some MPs are allegedly involved is a good sign: it has kept the judges off the back of politicians in managing their own affairs.

Laws passed by Parliament, and decisions taken by the Executive are all subject to the overall scrutiny of the court for legality and constitutional transgressions.

Yes, the judges of the High Courts and of the Supreme Court have been given a very important position in our Constitutional scheme but the institution of the courts, especially the established courts, can only survive if people retain confidence in them. So judges too must at all times and at all places be seen to be behaving ethically, with honour and within the Constitution and the law.

The Constitution has entrusted to our highest court the custody and control of the Constitution — and of all institutions created under it. The width of judicial power is as long as its reach, subject only to its acceptability by the people: everything turns on the first three words of our Constitution: WE THE PEOPLE. The opening words do not say: “WE THE REPRESENTATIVES OF THE PEOPLE”.

Ample judicial power administered with ample judicial wisdom — that is the need of the hour. Not a curtailment of judicial power, but wisdom in its administration.

(The writer is a leading constitutional expert and a practising lawyer. This is an abridged version of his speech initiating the debate at the KN Katju Memorial Lecture, at the India Habitat Centre on April 26)