Judges for Mrs G

In assessing judicial overreach remember what 8216;committed judiciary8217; did to our democracy

Both sides of the unending controversy over the respective roles of the judiciary and Parliament were stated with reasonable clarity and fairness only the other day, appropriately at a meeting of the state chief ministers and chief justices. While Prime Minister Manmohan Singh underscored that the dividing line between 8220;judicial activism and judicial overreach8221; was 8220;thin8221;, Chief Justice of India K.G. Balakrishnan declared that tension between the judiciary on the one hand and the legislature and the executive on the other was 8220;natural and to some extent desirable8221;.

What is needed is to find a balance between these two views, each legitimate enough, in but that is not going to be easy. For, the backdrop to the current contentions is the Supreme Court8217;s 8216;interim8217; stay on the 27 per cent OBC quota in institutions of higher learning until several pertinent questions the apex court has asked are answered. But the political class is not prepared to wait. Even parties that intensely hate each other are together demanding an immediate vacation of the stay. After all, there are still six more phases of the critically important assembly election in UP.

However, let it be said candidly that the starting point of any search for a fair balance between the three principal pillars of the Constitution 8212; which alone is supreme 8212; must be the realisation that the credibility of the higher judiciary about the subordinate judiciary the less said the better is much greater than that of the politicians and bureaucrats. God forbid, should there be a confrontation between the highest judiciary and Parliament, the vast majority of the population would side with the judiciary. In separate polls in two major newspapers on Wednesday, 91 and 83 per cent of respondents respectively have voted in favour of judicial activitism. The meaning of this should be clear enough. But to say this is not to pretend that the higher judiciary is infallible or that it has not crossed the Lakshman Rekha occasionally.

In the columns of this newspaper, J.S. Verma, former chief justice of India, has lucidly cited a number of instances in which the judiciary should have exercised restraint. To these, let me add just two more. The first is the single-judge operative order of the Allahabad High Court virtually abolishing the minority status of Muslims in UP. Mercifully a larger bench of the same court stayed his verdict within 24 hours.

In the other instance, in 1998, a single judge of the Delhi High Court had not only quashed the appointment of a lieutenant-general as army commander but also issued a writ that another lieutenant-general, the petitioner in the case, be appointed to that post forthwith. The then attorney-general, Soli Sorabjee, sought and secured a stay from the Supreme Court.

Yet the trespasses of the higher judiciary are relatively few and less baneful than the consequences of the comprehensive degeneration of the politico-bureaucratic culture, thanks to expediency and opportunism on the one hand and the galloping cancer of corruption on the other. Not to put any gloss on the situation the fundamental basis of democracy, equality before the law, has been eroded grievously. Thinking people have also noticed with dismay that the moment a law is declared invalid by the courts, the legislatures re-enact it or even amend the Constitution, irrespective of whether the purpose is to save OBC reservations or protect from demolition palpably illegal structures disfiguring Delhi. Furthermore, when the legislatures and executive fail to do their duty, the vacuum has to be filled by the judiciary, which is where the risk of overreach arises, especially because too many people rush to the courts with PILs.

A bird8217;s eye-view of how we have reached this sorry state of affairs would be instructive. Unlike Britain 8212; where no law passed by the British parliament can be declared invalid because that country has no written constitution 8212; here the Supreme Court has, as in America, not only the right but also the duty to review laws passed by Parliament and declare invalid those violating constitutional principles and provisions. In fact 100 laws have been so declared between 1950 and 2000.

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No wonder, problems had begun to arise even in the halcyon days immediately after the commencement of the Constitution. Jawaharlal Nehru was irked by a number of zamindari-abolition laws having been declared unlawful. He devised the Ninth Schedule to the Constitution to exempt from judicial scrutiny only land reforms laws. But over the years the Schedule has been converted into a dumping bag for nearly 300 laws sacrosanct to the ruling dispensation. It was in Indira Gandhi8217;s time that the conflict escalated, especially after the historic 1967 judgment laying down that Parliament could not amend the fundamental rights enshrined in the Constitution even by following the prescribed procedure. After spectacularly regaining popular mandate in 1971, she amended the Constitution to roll back the 1967 judgment. A 13-man bench of the apex court upheld Parliament8217;s right to amend all part of the Constitution but prohibited it from changing the basic structure of the Constitution.

Although this remains the law of the land till today and the court alone can decide what is or is not part of the Constitution8217;s basic structure, Indira Gandhi8217;s immediate response to the Kesvananda Bharati judgment of 1973 was to supersede senior judges who resigned in protest and to enunciate the doctrine of 8216;committed judiciary8217; along with that of a 8216;committed bureaucracy8217;. This was to contribute partly at least to the proclamation of the Emergency 1975-77. During that 19-month period the government blandly took the chilling position that no fundamental right existed.

When one of the judges asked whether a citizen had a remedy against a policeman wanting to shoot him, the then attorney-general, Niren Dey, replied, 8220;My Lord, not so long as the Emergency lasts. It shocks my conscience, it may shock yours but there is no remedy.8221;

Surely, none of us would want to revert to such a savage state of affairs.

The writer is a political commentator