THE SUPREME COURT Vs FEAR & FAVOUR
Dr Gautam Ghosh
In
the land mark judgment of Keshavanda Bharathi v. State of Kerela4,
the apex court of India the propounded the doctrine of basic structure
according to which it said that the legislature has power to amend the Constitution,
but such amendments shall not change the basic structure of the Constitution,
The Constitutional bench made no attempt to define the basic structure of the
Constitution. S.M. Sikri, C.J mentioned five basic features:
i.
Supremacy of the
Constitution.
ii.
Republican and
democratic form of Government.
iii.
Secular character of
the Constitution.
iv.
Separation of powers
between the legislature, the executive and the judiciary.
v.
Federal character of
the Constitution.
Justice
Sikri observed that these basic features are easily distinguishable not only
from the Preamble but also from the whole scheme of the Constitution. He
further added that the structure was built on the foundation of dignity and
freedom of the individual which undoubtedly cannot be amended. It was also
observed in that case that the above are only illustrative and not exhaustive
of all the limitations on the power of amendment of the Constitution.
Literally the notion of judicial review means the
revision of the decree or sentence of an inferior court by a superior court.
Judicial review has a more technical significance in pubic law, particularly in
countries having a written constitution which are founded on the concept of
limited government. Judicial review in this case means that Courts of law have
the power of testing the validity of legislative as well as other governmental
action with reference to the provisions of the constitution. The doctrine of
judicial review has been originated and developed by the American Supreme
Court, although there is no express provision in the American Constitution for
the judicial review. In Marbury v. Madison, the Supreme Court made it clear
that it had the power of judicial review. Chief Justice George Marshall said,“
Certainly all those who have framed the written Constitution contemplate them
as forming the fundamental and paramount law of the nations, and consequently,
the theory of every such Government must be that an act of the legislature,
repugnant to the Constitution is void”. There is supremacy of Constitution in
U.S.A. and, therefore, in case of conflict between the Constitution and the
Acts passed by the legislature, the Courts follow the Constitution and declare
the acts to be unconstitutional and, therefore, void. The Courts declare void
the acts of the legislature and the executive, if they are found in violation
of the provisions of the Constitution.
The constitution of India, in
this respect, is more a kin to the U.S. Constitution than the British. In
Britain, the doctrine of parliamentary supremacy still holds goods. No court of
law there can declare a parliamentary enactment invalid. On the contrary every
court is constrained to enforce every provision" of the law of parliament.
Under the constitution of India parliament is not Supreme. Its powers are
limited in the two ways. First, there is the division of powers between the
union and the states. Parliament is competent to pass laws only with respect to
those subjects which are guaranteed to the citizens against every form of
legislative encroachment. Being the guardian of Fundamental Rights and the
arbiter of constitutional conflicts between the union and the states with
respect to the division of powers between them, the Supreme Court stands in a
unique position where from it is competent to exercise the power of reviewing
legislative enactments both of parliament and the state legislatures. This is
what makes the court a powerful instrument of judicial review under the
constitution. As Dr. M.P. Jain has rightly observed: "The doctrine of judicial
review is thus firmly rooted in India, and has the explicit sanction of the
constitution."
In India, the constitutional supremacy
was explicitly reiterated in the Minerva Mills case whereby the Supreme Court
held that “government, legislature, executive and judiciary is all bound by the
Constitution, and nobody, is above or beyond the Constitution.” Every law made
by the parliament is subject to interpretation by supreme court in the light of
ideals and objectives of the constitution and if they go beyond or above that,
they can be held null and void. Indian Constitution does not have express
provision of separation of judicial and parliamentary supremacy but it’s not
quite unclear also. It is the prerogative of the parliament to amend the
constitution and make the laws; it is the duty of the judiciary to decide if
basic structure of the constitution are transgressed by such laws. One the
parliament has done its job, its Supreme Court which decides its
constitutionality through judicial review. There have been conflicts between
parliamentary supremacy and judicial supremacy. The best example is of National
Judicial Appointment Commission when Supreme Court pronounced its verdict on
the 99th Constitution Amendment Act and the National Judicial Appointments Commission
(NJAC), declaring them to be ultra vires the Constitution. It is true
that constitution has given superior powers of review to judiciary to decide
the constitutionality of the acts passed by legislature. Discharge of the
judicial functions should not be seen as against the will of the people for;
constitution derives its authority to give this power to Judiciary. The SC
enforced the power of judicial review in various cases, as for example, the
Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses
Abolition case (1971), the Kesavananda Bharati case (1973), the Minerva Mills
case (1980) and Supreme Court AOR Association Vs. Union of India (2016).
Judiciary should be free from the influence of the executive so that it could
promote the ends of justice. If the government is one of the parties to a
dispute the judges should protect the citizens against executive encroachment.
No executive authority should interfere in or exercise control over the working
of law courts. The judiciary protects the rights of people against the
encroachment of the government or any other association or individual. The
superior courts enforce the fundamental rights of the people through the
appropriate writs Judicial order- in the nature of Habeas Corpus, Mandamus,
Certiorari, Quo-Warranto etc. Both parliament and the judiciary should not
exceed their limits as defined by the constitution of India so that harmony can
be maintained between the legislature and judiciary. The new socio-economic
trends are to be kept in mind before making the legal provisions and their
interpretation both in strict and liberal sense. Participatory democratic
system must be made effective and there must be proper check on the active
interaction between the people and their representatives is responsible for the
conflict between the parliament and judicial system in India. Judiciary and the
legislature must be strengthened in terms of its special power of judicial
review to check and contain the excesses of other two wings of the government.
The Constitution of
India provides that the Supreme Court may review and revoke the law made by
Parliament and if there is no law on a particular issue, the Supreme Court's
decision is considered law of the land
Subsequently, in L. Chandra Kumar v. Union of India8, the Seven-judge
Constitutional Bench stated:
"that the power of judicial review over
legislative action vested in the High Courts under Article 226 and in the
Supreme Court under Article 32 of the Constitution is an integral and essential
feature of the Constitution, constituting part of its basic structure".
But how has the
Supreme Court fared during this time period ?
Well “The pre-2014 apex court was not hesitant in going against the
Central executive in matters involving high political stakes. This was evident
in the 2G licenses cancellation cases and coal scam cases. Though the coal-gate
case verdict was delivered in September 2014 after the coming of NDA
government, its hearings took place in the last leg of UPA-II, during which the
court passed several oral remarks (including the now famous “CBI is caged
parrot” remark), badly stinging the government. The interventions of the court
drew a lot of cheers from the media and public, which hailed judiciary as a
crusader against corruption and misgoverance.
The 1980s Supreme
Court was highly praised for this. Influential legal scholars — whose views
continue to hold sway in law schools today — lauded the destruction of pesky
“Anglo-Saxon” procedural rules, which stood in the way of “complete justice”.
Judges were painted as crusading heroes. In words that might have embarrassed
Louis XIV, the Supreme court was called “the last refuge of the oppressed and
the bewildered”. By the 1990s and the 2000s, under the misleading label of
“judicial activism”, the court was beginning to engage in a host of administrative
activities, from managing welfare schemes to “beautifying cities” to overseeing
anti-corruption initiatives. The constitutional court had become a Supreme
‘Administrative’ Court. This, too, was justified on the altar of necessity:
politicians were corrupt, bureaucrats were inefficient, and things didn’t
move. Someone had to come and clean it all up.
A combination of
viewing the judiciary as an infallible solution to all social problems, and
viewing procedure — that would otherwise constrain judicial power — as an
irritant that stands in the way of a truer, purer justice has created the
perfect storm that we see today. The first allows a judge to project her own
social and political views as universally valid and beneficial; the second
allows her to ignore the barriers that stand between her and the implementation
of those views. Wrapped up in patriotic zeal, a judge does not stop to think
whether he is authorised to compel all cinema halls in the nation to play the
national anthem; another does not consider whether he has the power to mandate
that every student in Tamil Nadu must study the Tirukkural; a third
takes over the entire process of preparing a National Register of Citizens
(NRC), with nary a thought about whether the Constitution ever contemplated a
task such as this to fall within the judicial domain. But post-2014, the SC
presented a meeker version when it came to dealing with cases which could prick
the political interests”- reports the WIRE dated 12/APR/2019
Justice S.R.
Sen of the Meghalaya High Court observed in a judgment that “anybody
opposing... Indian laws and the Constitution cannot be considered... citizens
of the country.” The case involved the denial of a domicile certificate.
Justice Sen, however, thought it fit to further note that in 1947 India “should
... have been declared... a Hindu country”, and that “our beloved Prime
Minister” ought to legislate to grant automatic citizenship to (non-Muslim) religious
minorities “who have come from Pakistan, Bangladesh and Afghanistan”. He also
noted that “our political leaders” in 1947 “were too much in a hurry to get the
independence... thus, creating all the problems today”, and that “nobody should
try to make India as another Islamic country”. In parting, Justice Sen directed
the Assistant Solicitor-General to hand over a copy of his judgment “latest by
11-12-2018 to the Hon’ble Prime Minister, Hon’ble Home Minister, and Hon’ble
Law Minister”.( Reports Gautam Bhatia – The Hindu on 13th Dec
2018 )
The Supreme Court has come to a
level where judges are afraid of the Bar, Supreme Court Bar Association
president Dushyant Dave wrote in a letter to the Chief Justice of India on
Wednesday, after he was denied a chance to speak at the farewell to Justice Arun
Mishra.
The protection of judicial independence is pivotal for a Democracy . Judicial Independence is the gate of Individual Independence. A Nation is not independent if there is any chain on Judicial Indeoendence , be in direct , indirect or remote
Judicial
independence is a public trust . The community must have confidence in its
system of justice and be comfortable in the knowledge that fairness, openness,
and immunity from improper influence are characteristics of its judiciary. In
this way, the community will believe that all citizens can expect the same
treatment according to the Rule of and respect for the administration of
justice will be maintained and enhanced. Representation of the goddess Justicia
with her eyes blindfolded, holding the scales, does not mean that justice is
blind. Rather, the symbolism is to remind us that the Rule of Law is intended
to treat all people equally, no matter what their circumstances. Also, judges
often wear robes when performing certain adjudicative functions. These gowns
are symbolic of the court’s authority to act as guardians of the Constitution
and protectors of the Rule of Law. The placement of judges on a raised dais
within the courtroom is also designed to signify the authority and impartiality
of the judiciary and to recognize the importance and the solemnity of the proceedings
Judicial independence requires that a judge adjudicate without fear or favour,
even in the face of a contrary view widely held by others, whether judicial
colleagues, government, the public, the media, or interest groups. It is the
community’s responsibility to vigorously resist any steps or initiatives deemed
to be an encroachment on judicial independence that would harm rather than
protect the public interest. Judicial independence means both the independence
of an individual judge from outside influences or pressure, as well as an
institutional independence for the entire judiciary, as a body, from any
influence from external pressures, direct or indirect, and more especially from
the other branches of the government,
and so its high time to remember that - Judges are not fearful saints. They have to be fearless preachers so as
to preserve the independence of the judiciary which is absolutely necessary for
survival of democracy," the bench, also comprising Justice Navin Sinha, ,
Supreme Court of India
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