Criticising the Supreme Court for relying on Constitutional morality and the basic structure doctrines, Attorney General K K Venugopal said Saturday that the apex court had “garnered to itself vast powers, which no one apex court in the world has ever exercised” and that its interpretation of Article 142 of the Constitution, in a manner, conveyed that it was “above the law”.
Speaking at the Second J Dadachanji Memorial Debate, Venugopal disapproved of the judiciary relying on the concept of Constitutional morality in judgments like in the Sabarimala case. He said he hoped that “Constitutional morality will die with its birth” and warned that “if (the court) still persists with it…Pandit Nehru’s belief that it would result in the Supreme Court of India becoming a third chamber will come true”.
The country’s top law officer also clarified that he was speaking in his personal capacity.
Tracing the history of “conflict” between the judiciary and the legislature, the AG said the apex court had, in the early years, struck down land reform and nationalisation laws “on a strict and literal interpretation of the Constitution”.
The government responded by bringing amendments “one after the other”, he said. The then Chief Justice M Hidayatullah said the “only purpose” of the amendments was “to neutralise the judgements of the Supreme Court”, the AG recalled, adding that it is “very difficult to say whether the court was right.”
“Things came to a head when the Kesavananda Bharati judgement was delivered”, he said, adding this was the “deathblow.to the Supremacy of the Parliament”. By a 7:6 majority, the apex court had in that case laid down the basic structure theory and restrained the government from amending it.
“The Preamble of the Constitution says ‘we the people’. We gave to ourselves this Constitution.Are you going to treat the whole of the population as illiterate and not able to think for themselves? I say no. Maybe the illiteracy today is 26 per cent, but even those (people living in the villages and rural areas), they have basic wisdom and they know what is good for them. And therefore, for the court to believe that unless we interfere, the country is doomed, I say no, it can’t”, said the AG.
He also criticised the manner in which the apex court had interpreted Article 142 of the Constitution saying it was “used” by the court… as a powerful weapon which surpassed all the powers conferred on the Supreme Court by the Constitution”.
Venugopal said, “Article 142 merely permitted the Court to pass such decree or make such order as to do complete justice in any cause or matter pending before the court…But the Article was treated as a Kamadhenu from which unlimited powers flowed to the apex court of the country.”
He explained that he had used the word “unlimited” because of what Justice M N Venkatachaliah had said about it in the Union Carbide judgement in 1991.
in that case, the apex court had said “the power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision”.
Referring to this, the AG said, “First of all, Article 142 had nothing whatsoever to do with the powers of Parliament. It had nothing to do with the powers of the Supreme Court override the laws made by the Parliament. But, this is what was said by the very eminent judge Justice Venkatachaliah. In other words, they said that so far as the Supreme Court is concerned, we are above the laws”.
“The result is that instead of the supremacy of the Constitution, the supremacy of the Supreme Court of India was established”, he said.
However, he said, the SC itself “realised the folly of placing the court over the law made by Parliament” and in the 1998 SCBA vs Union of India case, diluted its judgement in the Union Carbide matter.
Expressing to his concerns on Constitutional morality, the AG said he had a “justified apprehension” that it will now be used to test the laws.
Referring to the Sabarimala judgement, the AG said, “What is this Constitutional morality? If a bench of the Supreme Court speaks in two different voices, one saying Constitutional morality will permit the entry of women and the other one which says no, it’s prohibited because of constitutional morality, that is a very dangerous weapon.You cannot use it.it can result in grave injury without anyone knowing where it’s going to end.Therefore I’m hoping Constitutional morality will die with its birth.If it still persists with it, I’m afraid that Pandit Nehru’s belief that it would result in the Supreme Court of India becoming a third chamber will come true.”
The apex court had, in a 4:1 judgement, struck down age restrictions on the entry of women to the Sabarimala temple in Kerala. Both the minority and majority judgements had relied on Constitutional morality to justify their conclusions.
Speaking before the AG, Supreme Court judge Justice Madan B Lokur said the apex court had often been criticised for “judicial activism” and “hyper-activism” whenever it acts to make up for “executive inaction”. Citing the varied types of cases that come up before courts in other countries, he said: “I think we are comparatively far more restrained than other jurisdictions”.
Solicitor General Tushar Mehta too spoke on Constitutional morality and touched upon the need for caution when dealing with Constitutional morality.
Mehta, who also said he was speaking in his personal capacity, remarked in a lighter vein that the court had in the Baba Ramdev case said that right to sleep was a fundamental right and that it had now said that right to sleep with anyone is also a fundamental right.
He added that “these issues are decided by very learned and brilliant judges in good faith and in the interest of the nation. But under the Constitution, this field is in the domain of the legislature”.