With utmost respect, Mr Speaker

Consider the path-breaking judgment of our Supreme Court in Keshavananda Bharati which propounded the unique doctrine that the power of amendment of the Constitution, although absolute in terms of Article 368, is subject to certain implied limitations and cannot be exercised so as to damage the basic structure of the Constitution. Consequently, Parliament is not supreme even when it exercises its constituent power of amendment, and the last word rests with the Supreme Court. This judgment is the acme of judicial over-reach because the Supreme Court has in effect amended the amending power and exercised supra-legislative functions.

Although initially the judgment was vociferously criticised, today it is widely accepted. The 11-judge Constitution Bench of the Supreme Court in Coelho8217;s case has recently re-affirmed and expanded the basic structure doctrine. On the speaker8217;s reasoning, the Keshavananda Bharati and Coelho judgments would be intolerable intrusions into the legislative and constituent power of Parliament. Maybe. But remember that every country has to work out its constitutional salvation and development according to its specific needs and problems. It is thanks to the basic structure doctrine that our country cannot be made a theocratic state even by a constitutional amendment, which mandates that certain high constitutional offices would be denied to certain communities or classes. Thanks to the basic structure doctrine, provisions for periodic free and fair elections cannot be deleted from the Constitution, and democracy be made a mockery; nor can the judiciary be deprived of the power of judicial review, nor can the rule of law be abrogated. Again, thanks to this doctrine, federalism cannot be obliterated and the states made vassals of the Centre.

Another assumption in the speaker8217;s lecture is that courts strike down legislation because of disapproval of legislative policy. Far from it. The Supreme Court did not strike down nationalisation of banks because of its disapproval of the policy of nationalisation. Indeed the court rejected the challenge that the legislation was not in public interest. The Act was struck down because of the omission to provide for compensation under the then existing constitutional provision. The Act was subsequently amended and nationalisation went through. The Supreme Court, in its judgment in the BALCO case, has authoritatively ruled that it is not permissible for courts to strike down a policy decision on the ground that it is unwise or unscientific or uneconomic or illogical or that there could be a better policy decision.

Proper research and statistics would establish that in a vast majority of cases the Supreme Court has upheld socio-economic legislation by invoking the doctrine of presumption of constitutionality of a law and also the unreal presumption that the legislature correctly understands the needs of its people.

The speaker has profusely, and at times selectively, quoted Justice Verma to buttress his plea for judicial restraint. Surprisingly he has overlooked the celebrated judgment of Justice Verma in the case of Vishaka. In that judgment, after noting that there was no domestic legislation dealing with the pervasive evil of sexual harassment, the court issued several pro-tem directions which included definition of sexual harassment, the preventive steps that can be taken, the disciplinary action and proceedings to be adopted for sexual harassment and also for establishment of a complaints mechanism and a complaints committee. This judgment has been rightly applauded nationally and internationally because it has secured much needed relief to women. However, on the speaker8217;s reasoning, this decision should be branded as an impermissible instance of judicial law making, which function belongs to Parliament, which 8220;is the supreme legislative institution of the country, the people8217;s institution par excellence8230;8221;. It speaks volumes that till date Parliament has not found time to enact the necessary legislation.

Mention of 8216;we the people8217; in the Preamble and the will of the people in passing a law are certainly relevant considerations but are not decisive in constitutional adjudication of the validity of the law in question. What is controlling is the mandate of the Constitution. Suppose by an overwhelming majority a law is passed which outlaws strikes and demonstrations by government employees, or which sanctions gender discrimination by prohibiting employment of women in any section of the armed forces. Are courts bound to uphold such laws, which violate the fundamental rights of workers and women, on the ground that the will of the people must prevail? Such a stand makes a mockery of judicial review by an independent judiciary, which is a basic feature of our Constitution.

Enumeration of a list of erratic orders passed in PIL makes interesting reading but is not an answer to the legitimate exercise of judicial activism in several other cases. Many over-enthusiastic impermissible judicial orders passed by the high courts have been set aside by the Supreme Court, and exemplary costs have been imposed.

The undeniable fact is that in most cases, it is on account of the lethargy or continued inaction of the executive branch that the court is constrained to direct the executive to implement the laws made by the legislature, particularly when such inaction results in violation of fundamental rights. For example, violation of the rights of children working in hazardous occupations or of the fundamental right to live with dignity of the inmates of asylums and so-called care homes.

Let us not forget that thanks to PIL, undertrial prisoners rotting in jails for inordinately long periods, inmates of lunatic asylums and care-homes, children working in hazardous occupations have secured relief. Juristic activism in the arena of environmental and ecological issues has led to accountability in the use of hazardous technology and has yielded salutary results. For example: court8217;s directions regarding the use of CNG. If this be judicial activism, so be it. The executive may bemoan the court8217;s directions compelling it to discharge its obligation of law enforcement. The citizens rightly rejoice, because thanks to activist judicial intervention, some semblance of governance and decency in areas affecting their lives has been achieved.

The speaker in his eloquent plea for judicial restraint has referred in his lecture inter alia to the decision of US Supreme Court in Brown v. Board of Education. That is rather odd because in that case the court unanimously struck down the policy of segregation in educational institutions, which the Congress had not and could not achieve. The decision in Brown was the zenith of judicial activism of the Warren Court in the US and was certainly not an exercise of judicial restraint. Besides, the passage quoted in the lecture does not appear in the judgment at all.

Vigorous exercise of judicial review, in other words judicial activism, largely depends on the prevailing situation in the country, its laws or absence of laws, the level and quality of public administration and the availability of means of redress. It is not static. It cannot be strait-jacketed into a rigid formula. The extent and intensity of judicial review depend on the subject matter of the legislation. In case of socio-economic legislation, judicial activism should be minimal. Where legislation violates fundamental rights of equality, life and liberty, and freedom of expression, judicial activism is not an option but a necessity if the fundamental rights of the indigent and the exploited are to be made living realities.

Alas! We do not live in a perfect world in which there would be no occasion for the judiciary to order the executive to perform its duty of implementing the laws. In this imperfect state of affairs, if the judiciary sometimes exceeds its bounds by passing certain orders, the same should be corrected, but that is no reason for questioning the legitimacy of judicial activism and advocating judicial restraint to the point of judicial abnegation. All said and done judicial review is the heart and soul of our Constitution.

The writer is the former attorney general for India