Judicial power

Freedom ~ freedom for citizens like you and me ~ can only be secured through Courts ~ not through Parliament or through executive governments

By FALI S NARIMAN
The Statesman, 30 April

It is not without significance that when we are discussing separation of powers under the Constitution we have in the person of the Speaker and the former Chief Justice of India the two highest representatives of the two great organs of State ~ Parliament and the courts.

In their august presence I feel like the priest who was newly appointed to his parish and who went to make a courtesy call on his Bishop. The Bishop welcomed the new padre and solemnly told him that in his Sunday sermons he must praise those who are in Heaven and never forget to condemn all those who are in Hell. The priest shuffled a little and then excused himself saying: “I am sorry my Lord I cannot. Because I have friends in both places.”

I too have friends in both places: I have spent six rich and eventful years with law-makers and learnt much from them, and I have spent a professional lifetime with lawyers and judges. Having been on both sides of the fence let me give you my views.

As to when judicial power should trump legislative and executive power, and when if at all parliamentary power can or should trump judicial power: I think the truthful answer is: it all depends, it all depends on public acceptability of court decisions in high-profile cases.

“Judicial Activism” ~ is a much talked about phrase: but really it is only one manifestation of judicial power: a famous lawyer in England Anthony Lester recently described it ~ parodying Lord Acton’s ~ hackneyed ~ phrase. Seeing what English Judges do, he would have English Judges say (and I quote):

“Judicial power is wonderful, and absolute judicial power is absolutely wonderful”.

In India, the content and reach of judicial power is not defined ~ neither in our Constitution nor anywhere else.

Many believe that written constitutions that give 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 action 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! Almost every session of Parliament during the last few years has been marred by some dispute or contention of the moment ~ not of any grave national importance: there is hardly any serious debate on topics of all-India concern!

For two successive years now an important measure like the annual Finance Bill has been passed in each House of Parliament in a matter of minutes, without debate or discussion ~ amidst din and shouting. There is something wrong somewhere.

And 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.

I suggest that 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 (I confess that they do: and frequently too), 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 in the Centre and in the States.

In our Constitutional History of 57 years, judicial power has kept vacillating ~ contracting at times, expanding at times ~ according to the exigencies of the moment. During the internal Emergency of June 1975 up to March 1977 it had contracted ~ almost to vanishing point: and one of those who fought against that internal Emergency was our eminent parliamentarian Somnath Chatterjee to whom liberty is the very blood of life.

In his entire political life Somnath Chatterjee has always fought against tyranny and religious bigotry ~ that was why he was opposed to the internal Emergency of June 1975: that was the time when judicial power under our Constitution was at its lowest ebb.

As I said judicial power had contracted to its lowest level with the now notorious case of ADM Jabalpur (1976) when India’s then Chief Justice proclaimed in a judgment ~ a judgment which needs to be overruled (and I quote)

“Liberty itself is the gift of the law” (mark you the gift of the law ~ i.e. the gift of Parliament) and (the judgment goes on) “and it may by the law be forfeited or abridged.”

This was endorsed by a majority of four judges in a Bench of five ~ the great Justice Khanna alone dissenting ~ the majority decision made the Maintenance of Internal Security Act sacrosanct and beyond all judicial review.

Fortunately for us, this concept of liberty is not the rule of law on which our Constitution has been founded. It is a rule by law. If the rule of law is rule by judges (as it is frequently said to be) the-rule-by-law is the law that elected representatives make without any possibility of questioning it by the Judicial Arm of the State. I would like to live under a rule of law rather than under a rule by law. It is true that other countries have prospered in rule-by-law regimes. A Government which governs a State by law alone achieves economic progress quicker than a country like ours governed by the rule of law. Everybody praises China, but in that large country, as well as in that other small country the Republic of Singapore, even in this liberalised twenty-first century, do you know that you still require a police permit to hold a public meeting ~ a meeting just like this, to discuss a subject just like this, and I assure you in neither country would such a permit be granted! Let us reflect on this when we speak on a subject like Separation of Powers.

I am most heartened that the pendulum swung away from Chief Justice Ray’s grim dictum in the post-emergency period when both the Courts and Parliament (mark you even Parliament) said that Article 21 - our life and liberty clause - can never be suspended and it is, I believe, by this single act of Parliament when it amended our Constitution to provide that the right to life and liberty could never be suspended even during an Emergency that has given supremacy to the judicial branch of Government over all other branches.

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 which I will mention presently. 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!

It is only when internal Emergency was lifted, (thank God it was) and elections were held, and the Janata Government came to power on a wave of popularity ~ as a backlash to the internal Emergency ~ that a new Parliament ~ mark you Parliament itself ~ deleted MISA from the Ninth Schedule and repealed the Press Gagging Act: i.e. it left the life and liberty clause and freedom of the press guaranteed by Article 19(1)(a) virtually free of all executive and legislative constraints.

Freedom ~ freedom for citizens like you and me ~ can only be secured through Courts ~ not through Parliament or through executive governments.

I do not think it is permissible to speak about the omnipotence of Parliament in all things, nor to talk about clipping the wings of the judicature ~ or saying that jJdges are going too far.

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.

If the PILs had retained the character which first prompted the Supreme Court to recognise them ~ there would have been no problem viz. to afford to the poor and indigent a foothold and an audience in courts ~ that was in fact the original intention. But now PILs have swarmed into all walks of public life.

Needless furore

Having no personal interest at all these PILs ask courts to pronounce on this or that administrative or executive policy, and often our courts are willing to oblige in the euphoria generated by that aphorism of Lord Lester viz: that “absolute judicial power is absolutely wonderful”.

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

Very recently after Parliament unanimously passed an Act to give OBCs representation in centrally administered institutions like IIMs and a stay was granted by the Supreme Court on its implementation in the current academic year commencing June 2007, there was a furore: to my mind a needless furore. The furore was because government did not make the right application when at last it did our Chief Justice (in my respectful submission rightly) gave judicial power a new meaning by holding that the Court (and no one elest) would pronounce on the validity of the Act or any of its provisions but on an earlier date viz. 8th May without disturbing the stay already granted. This was an exercise of judicial power with judicial wisdom.

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.

But from this to say that the judiciary just cannot interfere with any action of the government and any action of Parliament which affects persons outside the four walls of the House is totally erroneous.

As to action within the four walls of the House, Parliament is and must be supreme and I have said so on innumerable occasions and the Hon’ble Speaker is aware of my views: as to how individual members of Parliament are to be treated by Parliament is for Parliament alone ~ not a matter for the courts. And I think the court was wrong in entertaining petitions by persons who were dismissed from Parliament by the unanimous vote of Parliament as Members when they were found to be corrupt.

This much I concede to Parliament but 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.

But, to give due credibility to our judiciary the time has now come to restore the position that obtained in 1982 when the Supreme Court relaxed the necessity of a litigant having to show personal interest in every matter filed in court ~ but only for those too poor and indigent and ignorant and hence unable to approach the courts. In the latter case alone ~ someone on their behalf could apply to the courts for relief.

I am a strong believer that if this is done, Judicial Power will be restored to its proper role and place, and if you like to call this the “balance of power”, then very well the balance of power will be maintained.

But no usurpation of Judicial Power by the executive or the legislatures can be tolerated because that is not how our Constitution has been framed.

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 ~ right thinking 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.

To conclude I heartily welcome a discussion on the topic of separation of powers and we will all learn much from what is said by the Hon’ble Speaker and the Hon’ble Chief Justice.

The fear

The only thing I fear in a seminar or debate such as this is that a climate of opinion may be created where Judicial Power gets eroded. Let me emphatically say with all humility and with respect that this is something which I absolutely resist: any such an erosion in my humble view is directly contrary to the clear intention of our Constitution. Individual judges ~ good, bad and indifferent ~ may come and go but the Constitution can never be judged or perverted by the indiscretion of one or more of the judges of the Superior Courts.

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 author is an eminent jurist. These were his remarks at the Katju Memorial Lecture on 26 April 2007