Written by Dr Balram K Gupta
We will be completing 75 years of Independence on August 15, 2022. The Parliament, Executive and Judiciary have functioned under the Indian Constitution since 1950. This 72-year constitutional journey has been meaningful and hugely contributory. The Judiciary (the top court) has played an active role as the savior of the Constitution.
It is normally attributed to the judiciary that it has played a pivotal role in giving voice to the silences of the Constitution — it be the basic structure or the constitutional morality. Both expressions have been used in Kesavananda Bharati judgment. They have been expounded through the medium of different cases by the apex court.
Similarly, there are many areas which have not been subjected to legislation. Therefore, the top court has filled up the gaps meaningfully through Judicial Directives. Article 141 ordains: The law declared by the Supreme Court shall be binding on all courts within the territory of India. Therefore, judicial activism has played a key role in our constitutional journey.
One wonders, why parliamentary activism is missing? I do not mean the Constitutional amendments. If parliamentary activism gains momentum, the same would help in balancing judicial activism. There are two aspects. It is a matter of record that through judicial interpretative process, many legislations have been subjected to constitutional corrective surgeries. They have been found to be not in accordance with the Constitution. In fact, in some cases, the Parliament has taken a different view. Accordingly, the amended legislation again comes to challenge for constitutional validity. Sometimes, it is again held to be unconstitutional. This process goes on though it is absolutely avoidable. It needs to be understood that the Constitution is equally binding on the Parliament. The second aspect is no less important. It is the endeavor of the Parliament to give more powers to the government. Good governance certainly does not mean more powers. It means, governance in accordance with the Constitution. Therefore, every legislation must meet the contours of the Constitution. The Constitution is to control the uncontrollable power. Resultantly, the Parliament needs to play an active role. To counter judicial activism, parliamentary activism is most essential. Any activism, whether judicial or parliamentary has to be within the constitutional boundaries.
Constitution is the Laxman Rekha. No one should cross this. This process will help in ushering good governance.
The Parliament has some of the best legal and constitutional minds. The belonging to the different political parties does not mean that they cannot work in unison. It is the realization that the Constitution is binding across political parties. The Constitution does not belong to the majority party alone. The Constitution belongs to the people of India. It is the Constitution which contains the will of the people. Therefore, the Parliament is to translate the Constitution through different legislations. While legislating, the Parliament must test every legislation on the touchstone of the Constitution. If this is achieved, it would usher a new era of Rule of Law. It would reduce, if not eliminate, the conflict of interest between the Parliament and the Executive on the one hand and the Judiciary on the other. Each organ will be more productive in its own area. It would be desirable that the different legislative bills are referred to different committees of the Parliament. The members of these committees belong to different political parties. The focus should be that the legislation ought to be constitutionally valid. If this objective is achieved, it would truly be good for the people of India. The different organs of human body work together towards healthy human body. Similarly, the different organs of the state must work together towards constitutional governance of the country.
There are hidden constitutional values. The bare reading of the provision may not speak of the hidden constitutional value. Article 14 speaks of equality before law and the equal protection of laws. Equals to be treated equally. Reasonable classification is of course permissible. Judicial review has helped in firmly laying down that any action which is arbitrary is also discriminatory. This, in fact, is the hidden value of the Constitution. Article 21 is a piece of beauty and joy forever. Many rights flow from it. Right to live with dignity. Right to die with dignity. Even the right to a living will has been recognized. The coparcenary of Fundamental Rights, Directive Principles and Fundamental Duties is the best constitutional recipe. Fundamental Duties need to read as limitations on Fundamental Rights. Jurisprudentially, the two cannot be divorced from each other.
During my reasonably long journey, I have often wondered, why judicial review has played such a significant role in a parliamentary democracy. I ask myself, why judicial activism! Why not parliamentary activism! Why the Institution of Lokpal or Ombudsman took so long? Its gestation period was almost close to 60 years. Ultimately, judicial push had to be given to it. I had wished it to be a constitutional body. Only a dream! By parliamentary activism, I mean, strengthening rule of law through legislative process. Enact laws to curb arbitrariness. To eliminate abuse of power. To strengthen constitutional values. Its morality. We all are under the Constitution. The constitutional bodies must function as independent bodies. To serve the constitutional object and purpose. Let the Parliament, the Executive and the Judiciary play active and positive role to strengthen the constitution. To translate the constitution-into-action. This would help in balancing judicial activism. The three organs are bound by the constitution. The people are also to follow the constitution. Therefore, let us pledge ourselves to follow the constitution. Independent India belongs to the Constitution.
(Balram K Gupta, Professor Emeritus and Senior Advocate, was formerly director, National Judicial Academy)