The Hindu : Opinion / News Analysis : Parliament and the Judiciary

99, The Hindu : Opinion / News Analysis : Parliament and the Judiciary

Online edition of India's National Newspaper
Sunday, Sep 26, 2004

Opinion

Opinion - News Analysis

Parliament and the Judiciary

All the three wings of the state are creatures of the Constitution and are bound by it. There has to be complementarity among the constitutional institutions and no one institution can claim superiority over the other. Nevertheless, in a system governed by a written Constitution, there has to be necessarily an independent judiciary, says N.R. Madhava Menon.

THE INDIAN Constitution today is far different in content and concerns from what it was at the commencement of the Republic. The original text has undergone many changes, some of which are beyond the imagination of even the framers of the Constitution. Parliament made nearly 100 amendments, some inconsequential in nature, some corrective of the distortions that had crept in, and still others to advance developmental goals.

As compared to this, what the Supreme Court has done through a couple of judgments is indeed radical enough to alter the very character of the Constitution as originally conceived by the Constituent Assembly. Among such radical changes rendered by the Court are the discovery of the "basic features" beyond the amending powers of Parliament, the introduction of the "due process clause" in its substantive and procedural aspects in the reading of Article 21 and Article 14, and the generation of numerous rights and freedoms not expressly given in Part III of the Constitution.

In doing so, the Supreme Court has assumed powers that many constitutional scholars believe do not belong to it. How did it happen and why are questions seldom asked?

Accountability

What is at stake is the way WE, THE PEOPLE OF INDIA have resolved to govern ourselves and the manner in which human rights and democratic accountability are sought to be achieved under a federal polity. In the final analysis in any constitutional democracy, power resides with the people and it is exercised through the rule of law reflecting their collective will. Constitutional institutions are only instruments that exercise limited power in a system where power is divided and operated through checks and balances.

Having critiqued the role of the Court in shaping the Constitution (see accompanying boxes) in its new avatar, it is important to see how the other two organs of Government performed in order to decide whether a change is warranted now and, if so, how it is to be achieved.

The Constitution of a nation is a living thing and must be allowed to evolve naturally unless a revolution overtakes it. Any attempt to redraft the Constitution in its essential elements is fraught with unforeseen consequences. At the same time, debating the strengths and weaknesses of the system and proposing alternative courses of action is the democratic way of building public opinion towards change and progress.

The former Chief Justice of India, Dr. A.S. Anand, in his Millennium Law Lectures (October 1999) at the Kerala High Court Advocate's Association, while defending judicial activism emphasised the need for caution to ensure that activism does not become "judicial adventurism." Otherwise, he warned, it might "lead to chaos and people would not know which organ of the state to look for to stop abuse or misuse of power." Quoting approvingly the observations in respect of policy-making of Lord Justice Lawton in the Laker Airways Case (1977(2) WLR 234 at 267), he reiterated the principle that " ... the role of the judge is that of a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play." Dr. Anand added that the "judicial whistle needs to be blown for a purpose and with caution. It needs to be remembered that Court cannot run the Government. The Courts have the duty of implementing the constitutional safeguards that protect individual rights but they cannot push back the limits of the Constitution to accommodate the challenged violation."

Lack of remedy

Wise words indeed for judges to remember. The problem, however, is the absence of an effective remedy when judges cross the Lakshman Rekha consciously or otherwise, leaving no remedy to restore the constitutional balance. Such situations may be rare but they do exist. All the three wings of the state are creatures of the Constitution and are bound by it. As coordinate organs of the state there is to be complementarity among the constitutional institutions and no one institution can claim superiority over the other. Nevertheless, in a federal system governed by a written Constitution, there has to be necessarily an independent judiciary capable of resolving disputes between the federating units and the Centre as well as to judge the constitutionality of legislative and executive action in terms of the guaranteed rights of citizens. For the progress of the nation it is imperative that all the three wings of the state function in complete harmony.

Unfortunately, on many occasions this did not happen and issues to be decided through political and legislative processes were brought before the courts for adjudication. While so adjudicating, courts have to review the constitutionality of the law and interpret its scope vis-à-vis the powers given under the Constitution.

In doing so it is not to be understood that the Court is a super legislature and sits in judgment on the wisdom of policies adopted by the legislature. It is only ensuring the observance of the provisions of the Constitution, which is the legitimate function of the Court. Judicial review is fundamental to the rule of law though prima facie it may appear to a layman as anti-democratic and elitist. Courts of law are creatures of the Constitution and can act only within the sphere of its jurisdiction.

There are at least two types of situations in which the Court took an activist posture and either assumed a legislative role or attempted to directly undertake governance. The first type of situation is where gaps and ambiguities exist in the law or where the full protection of Fundamental Rights warranted enunciation of a new policy or extension of an existing policy in conformity with the constitutional scheme and the international obligations of the State. The Visakha Case judgment (1997(6) SCC 241) and the Lakshmi Nath Pandey Case (1984(2) SCC 244) are examples of this type of judicial activism in the legislative sphere. The expansion of the right to life under Article 21, invoking the Directive Principles, is another example of activism in areas legitimately belonging to the legislature.

The second type of situation in which the Court proactively involved itself in what is generally called the executive function, is where the laws are left unimplemented for whatever reasons and individual rights or public interest are adversely affected thereby. Many decisions on environmental law, directing executive action even where budgetary re-allocation is required are illustrative of judicial intervention in the executive sphere. An extreme example of this type of judicial activism is the Vineet Narain Case (AIR 1996 SC 3386) where through the devise of continuing mandamus the Supreme Court directed the investigation of high-level corruption and monitored its progress till its completion with the filing of the chargesheet.

Cause of justice

From the perspective of the judiciary it was only attempting to achieve the constitutional purpose in the best way it felt appropriate in the situation. In the process it did advance the cause of justice and ensured proper implementation of the rule of law. However, from the perspective of the legislature, it was usurpation of its powers and functions. The executive argued that the court was in effect running the Government the way it considered desirable.

Both raised the issue of judicial accountability, the demise of the doctrine of separation of powers, and the negation of checks and balances in the constitutional scheme. The judiciary defended itself by saying that the court acted only in areas where there was legislative vacuum in the field of human rights and that its action only strengthened democracy and the common man's faith in the rule of law (Dr. A.S. Anand, Millennium Lecture reproduced in Law & Justice edited by Soli Sorabjee, Universal 2004).

Where does this discussion on judicial role in constitutional law-making lead one in terms of parliamentary democracy, democratic accountability and constitutional governance? The answer depends on how one perceives the performance of the executive and legislative wings of the state and what constitutes public interest in the given situation. It is difficult to resolve this question in terms of the original intent of the constitution-makers or the presumed will of WE, THE PEOPLE OF INDIA. Nor can it be addressed by textbook definitions of democracy, the rule of law and constitutional governance.

Accountability, of course, is a key issue. The over-concentration of power in any one institution is inimical to democratic accountability and good governance. There is need for restraint and the development of healthy constitutional conventions and practices. In the present context, judicial appointments, judicial independence and judicial accountability are issues that warrant informed and responsible debate if parliamentary government is to remain the central theme of Indian democracy.

Not in India alone

The problems are not peculiar to India either. In 1998 a joint colloquium was organised in London sponsored by the Commonwealth Parliamentary Association, the Commonwealth Lawyers' Association and the Commonwealth Judges' Association on "Parliamentary Supremacy and Judicial Independence." It adopted a set of guidelines on Good Practice Governing Relations Between the Executive, Parliament and the Judiciary in the Promotion of Good Governance, the Rule of Law and Human Rights. In relation to Parliament and the judiciary, the following guideline was adopted which speaks of the delicate balance and the restraint and responsibility each institution must demonstrate in the exercise of power within its own constitutional sphere so as not to encroach on the legitimate discharge of constitutional functions by other institutions. The guideline stated: "The legislative function is the primary responsibility of parliament as the elected body representing the people. Judges may be constructive and purposive in the interpretation of legislation, but must not usurp Parliament's legislative function. Courts should have the power to declare legislation to be unconstitutional and of no legal effect. However, there may be circumstances where the appropriate remedy would be for the court to declare the incompatibility of a statute with the Constitution, leaving it to the legislature to take remedial measures."

In conclusion, it is worthwhile to recall the views of the Hon'ble Justice Pierre Olivier of South Africa. He was highly critical of the Westminster model of parliamentary sovereignty which proved powerless to protect the people of apartheid South Africa from unjust laws passed by a Parliament which was a rubber stamp of a tyrannical executive. Judge Olivier painted a vivid picture of the intolerable position in which South African judges were placed in having to apply oppressive laws in relation to which the possibility of judicial review was carefully excluded. Even judicial review of executive action was emasculated by laws conferring draconian powers upon the executive.

Does this description of the erstwhile South African model of Parliamentary supremacy strike any parallel with the state of Parliament during the Emergency period in India? If so, there is reason to let the "basic structure" doctrine remain in Indian Constitutional Law despite the threat of "judicial activism" upsetting the democratic balance of power. The issue cannot be resolved by declaring that in India the Constitution is supreme. This is because of the vastness of the power of judicial review the courts have assumed and the limitations on amending power of Parliament again developed through judicial interpretation. The proposition that "Constitution is what the judges say it is" cannot be accepted under any democratic scheme of governance. Particularly when there is no clarity or certainty as to the nature, number and scope of unamendable basic features of the Constitution. In the circumstances, the available options are a national debate on the issue and possibly a referendum on scope and procedure of amendment of so-called basic features and/or a review of the whole situation by the full Court of 26 judges of the Supreme Court after issuing notices to all the stakeholders.

(Dr. Madhava Menon is Director, National Judicial Academy, Bhopal. The opinions expressed are his personal views only.)

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