“Constitution, The Executive Legislatiure And The Courts”


India has one of the finest Constitutions – guaranteeing the citizens social and economic justice and the likes of which is seldom to be found in other countries. The hopes and aspirations which inspired the freedom struggle were the foundation on which the Constitution of India was framed. The strong voice of the people of India expressed through the Preamble of the Constitution of India laid down the goal to be achieved by any government:  “We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:

Justice, social, economic and political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and of opportunity;

And to promote among them all:

Fraternity assuring the dignity of the individual and the Unity and integrity of

           the Nation”.

One of the basic problems facing any democratic nation relates to the division of power between the three principal instrumentalities representing the sovereignty of the nation, namely, Legislature, Executive and Judiciary. Long ago, Baron De Montesquieu had this to say in this regard: ‘when the legislative and executive powers are united in the same person or body, there can be no liberty because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to enforce them in a tyrannical manner…..were the power of judging joined with the legislature, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.’ Montesquieu saw this predicament and himself added that there can be no liberty if the power of judging be not separated from the legislative and executive powers.

So when our founding fathers and mothers were engaged in framing the Constitution, they had various weighty precedents to work on, with the necessary flexibility to suit our special conditions in the country.

Referring to the American Constitution, Justice Paterson (1875) had raised the question, “What then is the Constitution?”, and answering “it is a form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental law are established.”

In earlier period, the common people, unfortunately, did not figure in the scheme of governance. Thus even 400 years after the Magna Carta was signed, King James I felt unhappy when prerogative courts set up by him came in conflict with old courts applying the common law. King James I summoned the Chief Justice Sir Edward Coke to stop interfering with the prerogative courts. “The King’s will, James asserted, ‘was supreme’. Sir Edward Coke, the Chief Justice of the Court of Common Pleas, responded that the judges must follow the common law, to which King answered wrathfully, “then I am to be under the law – which it is treason to affirm.” Coke replied by quoting Bracton, a medieval scholar monk, Rex non debet esse sub homine sed sub deo et lege.” – “The King ought not to be under any man, but under God and the law.” The story of the exchange has echoed down through the years.

In India similarly we have had the established principle that King, though an absolute sovereign must yet function within Dharma – which is another way of  proclaiming the theory of the supremacy of law.

The Constitution thus both grants and limits powers. It defines the legislative powers, and it confers judicial powers on High Courts and the Supreme Court to oversee that the limitations on the various agencies of the state are not transgressed. The Constitution is thus a document of rights and limitations rather than powers. Thus the legislature cannot exercise executive or judicial powers and the same must apply to the other organs of the state. The Constitution directs and also provides mechanism in the shape of courts to see that neither of the agencies of the state encroaches on the field allocated to the other branches of the government.

Every organ of the State, be it the executive or the legislature or the judiciary derives its authority from the Constitution and it has to act within the limits of such authority. Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Constitution.

Wherever there is a written Constitution, the Supreme law is the law of the Constitution and even for the Parliament to accept that its powers are limited by the written Constitution is not in any manner to derogate from its sovereignty, but only to accept that its sovereignty like the sovereignty of the executive and the judiciary is limited by the written Constitution.

The power of constitutional review, to be exercised by some wing of the State is implicit in the conception of a written constitution and it would promote discord   rather  than  order  in  society  if  there  was  no  accepted  authority  to

construe it. Therefore, logically and practically, the Constitution requires some authority to resolve all constitutional issues and the power of judicial review conferred on the Supreme Court and the High Courts is an inevitable consequence of this premise.

It stands to reason therefore that if any occasion arises where the executive or the legislature have overstepped the limits laid down by the Constitution,   there  must  exist   an  institution, capable  of  dispassionately   and

impartially applying its mind and finding out where the truth lies. Obviously there can be no better instrument than the courts which are manned by trained judicial minds and which can be expected to consider the matter in the cool, calm and sober atmosphere of the courtroom, always of course taking into account the current winds of change sweeping the country but not mistaking every whiff of breeze as necessarily indicating an advancement in the search for social justice.                                                            

The founding fathers and mothers of our Constitution consciously placed enormous powers in the hands of the Judiciary. Dr. B.R. Ambedkar defended the provisions of judicial review as being absolutely necessary. According to him, the

provision for judicial review and, particularly, for the writ jurisdiction that gave quick relief against the abridgement of fundamental rights constituted the heart of the Constitution, the very soul of it. Alladi Krishnaswami Ayyar, during the Constituent  Assembly  Debates, had remarked, “the future evolution of Indian Constitution will thus depend to a large extent upon the work of the Supreme Court and the direction given to it by the Court. While its function may be one of interpreting the Constitution, it can not in the discharge of its duties afford to ignore the social, economic and work tendencies of the time, which furnish the necessary background”. (emphasis added)

“Judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in the exercise of its constituent power can abrogate or take it away; If the power of judicial review is abrogated or taken away the Constitution will cease to be what it is.”

The concept of Judicial Activism is not one of the recent past. It was born in 1803 when Chief Justice Marshall, the American Supreme Court decided Marbury v. Maddison. He observed that the Constitution was the fundamental and paramount law of the nation and “it is for the court to say what the law is”. He concluded that the particular phraseology of the Constitution of the United States confirms  and  strengthens  the  principle  supposed  to be  essential to all written

 Constitutions: that a law repugnant to the Constitution is void and that the courts as well as other departments are bound by that instrument. If there was a conflict between a law made by the Congress and the provisions in the Constitution, it was the duty of the court to enforce the Constitution and ignore the law. The twin concepts of judicial review and judicial activism were thus born.

Alexander Hamilton one of the framers of the American Constitution stated, ‘that the courts were designed to be an intermediate body between the people and the Legislature in order among other things to keep the latter within the limits assigned to their authority. “Constitutional interpretation by the courts, Hamilton said, does not “by any means suppose a superiority of the judicial over the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in the statutes, stands in opposition to that of the people, declared in the Constitution, the Judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental”. Judges, though they may not be omniscient or for that matter philosopher –  kings,  are  better   equipped   for   the  task   so  long  as they  are

aware of their limitations. Justice Douglas of U.S. Supreme Court has stated, “The problem of Constitutional adjudication is the same. It is to keep the power of the  Government unrestrained by the social or economic  theories that one set of judges may entertain. It is to keep one age unfettered by the fears of limited vision of another”.

The interpretation of laws is the ‘proper and peculiar province of the courts.’ Chief Justice Earl Warren of United States Supreme Court quoted the observations of Daniel Webster wherein he said, ‘the maintenance of the Judicial power is essential and indispensable to the very being of this Government. The Constitution without it would be no Constitution, the Government no Government.’

The U.S. Supreme Court struck down several legislations made by the U.S. President and Senate. There were severe uproars, but the orders of the Court were enforced. This was illustrated in the case of Brown v. Board of Education which attracted the ire of the white majority when it held that racial segregation in public education was unconstitutional.

Situation became so serious that the U.S. government had to send federal troops in  the  Southern  State of  Albama  to  enforce  the  decision. There  were

scurrilous references by partisan group, but no one suggested that court orders could be ignored – Martin Luther King was the biggest phenomenon of this Judgment.

In Britain, the governing rule for the nature of the judicial process, for a long time, was, as expressed by Sir Francis Bacon in the early seventeenth century: “judge ought to remember that their office is to interpret law, and not to make law”. This tradition, established by Jeremy Bentham, who had a deep distrust of judge-made law, stated that it is undemocratic for the non-elected judiciary to act as law makers and this function should be prerogative of the elected Members in Parliament. But since the early sixties, Lord Reid, Lord Denning and Lord Wilberforce spearheaded with their doctrine of “purposive interpretation”, which breathed new life into English Administrative law, reviving and extending ancient principles of natural justice and fairness, applying them to public authorities and to private bodies exercising public power, and rejecting claims of unfettered administrative direction.

The fallacy which the opponents of judicial review make in confusing the power of adjudication of the courts to determine the Constitutional validity of a legislation as being motivated by politics rather than by the compulsions of the Constitutional  instrument itself. Rejecting  this charge, the Law Commission in its

46th Report said, “If, while discharging its functions, the Supreme Court interprets an ordinary law or a provision of the Constitution in a manner which, in the opinion of the Parliament, does not represent the true interpretation of Parliament, it is   open  to  Parliament  to make   its  intention   clear by   taking recourse to the suitable, legitimate and well-recognized process of amending the law or the Constitution. But, while this process is in progress, no effort should be made to introduce notions of confrontation between Parliament on the one hand and the judiciary on the other.

The judges are fully conscious that they are only one of three instrumentalities of the State and they claim no greater recognition but that of a co-equal and who have a mandate under the Constitution.

Judges themselves accept judicial self-restraint. As stated by Justice Holmes,  the U.S.A. Supreme Court should defer to the popular will as expressed in the enactments of legislative majorities, ‘unless it can be said that a rational and fair person necessarily  would  admit  that  the  statute proposed  would infringe fundamental principles as they have been understood by the traditions of our people and our law’. Our Supreme Court affirmed this in R.C. Cooper’s case (1970) wherein it said “whether the policy followed by the Government in office or the policy propounded by its  opponents  may  reasonably  attain  the  national objectives are matters which have little relevance in determining the legality of the measures. It is again not for this court to consider the relative merits of the different  political  theories or economic policies—this court has the power to strike down a law on the ground of want of authority but the court will not sit in appeal over the policy of Parliament in enacting a law”.

The charge that judges are not appreciative of the sensibilities for change pervading society is made on no supportive material. The judges come from the same background and social strata of population, as the legislators. There is no logic in suggesting that simply because a person has become a judge he has lost all contact with the social current and ‘felt necessities of time’. Judges after all are not a separate species. Prior to their becoming judges they have rubbed shoulders with the man in the street and have seen life in its raw form and are aware of the problems faced by common man. Many of the Judges may even have been greatly active in various fields of political work, social work and other group activities.

It should also be noticed that the argument of judges being unelected cannot stand scrutiny because it is not suggested by these opponents of judicial review that in places where judges are elected, like as they are in some jurisdictions in the United States, they would be justified in declaring certain Acts ultra vires even though they fall within the legislative competence of the legislature merely on the ground that as elected judges they also have a mandate to apply their personal views as to the necessity or wisdom of a particular legislation.Now not even the staunchest supporters of judicial review will endorse such an untenable view.

There seems to be an impression, not fully accurate that judiciary is intervening in matters which are in political domain and thus overstepping its jurisdiction.  But this impression is broadly incorrect and reflects inadequate understanding of the role of judiciary in our constitutional set up.

Judges  are  not  vain   enough   to   hold   that  courts have answers   to every  problem that concerns society.  They lay no claim to such infallibility.  No  doubt   the   interpretation  and   emphasis  by  each  judge  will depend   upon   his/her differing    social,   philosophical    and  political background.  Decisions will also be affected by the judge’s conception of such policies which respond to social, economic and political factors.  Acceptance of all these factors influencing the judge’s decisions may weaken the mythical mystique of the so-called judicial process, but to put it under wraps will give a wrong idea of the way the judiciary functions.

Judges’ decisions are influenced by what writers like Pound and Frankfurter called `sociological jurisprudence’ and Justice Holmes called the `major inarticulate premise’.               

One of the usual misunderstandings in the exercise of Judicial review of action of legislature and executive seems to arise that the courts consider themselves superior to Executive and Legislature. The controversy being generated over the supremacy of the three wings of democracy – Judiciary, Legislature and Executive – is a “futile exercise.”  Neither the legislature nor the executive nor even the judiciary is superior.  It is the people who are supreme.                                          

The criticism of judicial activism as  such is untenable.  Courts have since long been judicially active in giving relief in social action litigation to Labour, to victims of custodial violence, to the excesses committed by the Executive.  But as previously judicial targets were comparatively junior officials and certainly never involving politicians, issue of judicial activism was not raised by the Executive.  This charge of alleged interference by the Courts has only now been put in issue because the fire of judicial activism is coming nearer home to the high officials and politicians who had falsely hypnotized themselves into believing that they were above the law even though as far back as over 300 years, Chief Justice Coke of England had said “Be you ever so high, the law is above you.”

How onerous the exercise of judicial power is, has been very aptly stated by Chief Justice Marshall: of U.S.A. Supreme Court, “The Judiciary cannot, as the Legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other is treason to the Constitution.”

“No organ can usurp the functions assigned to another….Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of the State function within the constitutional limits. It is  the  sentinel of  democracy.  Judicial  review  is  a powerful weapon to restrain unconstitutional exercise of power by the Legislature and the Executive. The expanding horizon of judicial review has taken in its fold the concept of social economic justice”.

It is in that context that one recapitulates with nostalgia,  the anguished  but   determined  rap  given  by   Chief  Justice  Patanjali Sastri to the  highest  of  political  leaders, who  were visibly upset at some of the earlier judgments of the Supreme Court striking down legislation because it violated fundamental rights of citizens   by   firmly   stating  “that we think it right to point out what is sometimes overlooked, that our Constitution contains an express provision for judicial review of legislation, as to its conformity with the Constitution. If then, the Courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution.  This is especially true as regards the fundamental rights, as to which this Court has been assigned the role of a sentinel on the `qui vive’, — and that while the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statue”.

Wise and strong words which still continue to act as a beacon light to the legal fraternity.

If the people go to the Supreme Court and the High Courts under their writ jurisdiction and raise issues of governance that seem to be non-justiciable, it is out of their relatively greater regard for the courts compared to other organs of Government. Had  the courts  not  entertained  those  matters,  there would have been greater frustration among the people and perhaps it might have exploded in some way detrimental to democracy.

Judicial Activism is not an aberration. It is an essential aspect of the dynamics of a constitutional court. It is a counter-majoritarian check on democracy. Judicial activism, does not, however, mean governance by the Judiciary. It also must function within the limits of the judicial process.

It will thus be amply clear that judiciary (barring some rare escapades) is aware of its precise role in the constitutional set up. So when seemingly interested people mostly politicians accuse it of overstepping its constitutional limits, the anger is borne more out of frustration at their partisan actions being challenged before the judiciary rather than the usurpation of power and jurisdiction by the courts.

It would be a truism to say that, “Court does not live in a rarefied atmosphere.  It allows itself to take a bold initiative in matters on which the public is very much agitated, but the legislature is playing spoilsport.”

Though it would be rashly presumptuous to boast that all is now well, it is heartening that some recent happenings give heart that judiciary is on its way to play its assigned role of a sentinel on the qui vive.

Thus people’s anger at criminalization of politics, (in fact it is politicisation of criminals) when ignored by legislature, found a sympathetic ear in judiciary when it held that right to know mandates that all candidates disclose their involvement in criminal cases and their assets in their nomination papers.  Though the court has only asked for information, this harmless action invited total unanimous criticism from all political parties.  Surely this correct stand can not be said to be interfering in the political field – rather it is the preservation of the citizen’s democratic right to know, an aspect of the right of free speech guaranteed by Article 19  of the Constitution of India. Not being able to justify its inaction in such like matters,  political  parties  let  loose  a flood of calumny against the judiciary that it was exceeding its powers and was entering the political field.  This was a ploy and diversionary  tactics by the political parties to prevent the glare of public on their hidden angles.  But as this direction by the court would have enabled the citizens to effectuate their fundamental rights to know, the court rightly went ahead and gave the necessary direction.  The court brought in a veritable sea change in election arena and fulfilled a felt need of the people who were agitating it for so long, which was ignored by the legislature.

Further strength of the Supreme Court was reflected in its intervention following the chorus of protest at horror at Best Bakery Acquittal case (Gujarat) decided by Trial Court. A numbness seized the population at seeing the accused who were charged with public burning of members of the minority community go scott free. There was despondency in the society – Is judiciary powerless against the despicable effrontery of Narendra Modi Government in violating all norms of civilised and lawful behaviour. And then suddenly on being moved by public spirited bodies, the Supreme Court intervention came as a ray of light. Modi government yielded to the charge that it was violating Raj Dharam and even the highest publicly apologised and promised to follow the law, as they should have done  right  from the  beginning. Though if might have caused great upsets to some in the power set up, the confidence of the person in the street in the might of justice and the rule of law received great fillip.

The ugly spectacle of ministry making in Jharkhand coupled with the illegal action of the Governor which the Supreme Court attempted to correct was unjustifiably projected as a confrontation of Judiciary Vs. Legislature.  It should be emphasized that the Court only modified the order of Governor (the Executive Head) and  there was no interference with the internal functioning of the Assembly except to direct that  item of confidence vote should be completed the same day.                                                                

There is a misconception that the decision given in the legislature by the Speaker is sacrosanct and untouchable like a dictate of Louis XIV of France. This fallacy was  blown out in Bommai’s case (9 Judges decision) when dealing with vote of confidence in the Meghalaya Assembly. Both the Houses of Parliament  approved the said proclamation.  This was struck down by the Supreme Court observing “The unflattering episode shows in unmistakable terms, the Governor’s unnecessary anxiety to dismiss the Ministry and dissolve the Assembly and also his failure as a constitutional functionary  to realize the binding legal consequences of and give effect to the orders of this Court.  What is worse, the Union Council of Ministers also chose to give advice to the President to issue the Proclamation on the material in question, when prima facie the material before the President was not only irrational but motivated by factual and legal mala fides.  The proclamation was, therefore, invalid.”  No one has treated that judgment as a confrontation  with the legislature. Why now?

This precedent has been correctly followed by the President notwithstanding the full public shouting by the interested party asking for President’s Rule. This shows the restraining hand of judiciary and has helped defuse the explosive situation.           

Though there is no specific provision in our Constitution guaranteeing the right of privacy, the judgment in PUCL case has taken a view that the“right to privacy” is part of the right to life and personal liberty” enshrined under Article 21 of the Constitution, and that telephone tapping unless it comes within the grounds of restrictions provided under Article 19(1), 19(1)(a) of the Constitution, it would be bad. It is only thereafter that Parliament framed some legislation, notwithstanding that it was common knowledge that police was illegally tapping telephone of Central Ministers, political leaders and important journalists, for over two decades.

Sometimes a judge is faced with an iniquitous provision while the legislature because of political sensitivity or even sheer lethargy is unable to bring fresh desired legislation. So a situation arises where literal interpretation seems grossly unjust to a Judge.  Traditional view would be to advise inaction by Judge and a counsel that it is for the legislature to enter a new field. I would beg to differ; because when faced with such a horrendous situation, a Judge cannot hide behind legislative skirt.   I myself was faced with such a situation when dealing with the case of a young-man who was being prosecuted for attempt to suicide under Section 309 IPC because parents had refused to let him marry a girl of his choice.

My view on this was that the continuance of Section 309 IPC is an anachronism unworthy of a humane society like ours……… there was   no justification  for  a  provision  like  Section  309 IPC to be on the statute book.

I, therefore, called to my file, 120 cases filed under Section 309 of the IPC that were pending in Delhi Courts and quashed all prosecutions. Though undoubtedly the question of my taking the role of the legislature could be legitimately commented on but I saw no reason why the delay in repealing this provision which no longer finds place in any of the civilized nations of the world should be applied, so as to continue to add to the backlog of already overworked courts. I expressed hope that this provision is removed from the statute book at the earliest.  Parliament has not yet found time for it. I also must confess that the Supreme Court disapproved of my initiative and has upheld the continuance of an offence namely attempt to commit suicide, purportedly thus showing its deference to the legislative wisdom. 

Or take another case where the complaint before me was that there were very few Labour Courts in Delhi as against the load of cases. As a matter of fact, Labour Ministry, Government of India had after a great deal of expert study fixed a  criteria   for  appointing  Labour Courts in terms of the cases in each state. On that basis Delhi needed ten additional Labour Courts. Government was indifferent to the request of trade unionists to appoint extra Labour Courts. It is thereafter that they approached the High Court. Now one was faced with a moral dilemma – speaking technically it was the government’s privilege whether to appoint the Labour Courts or not – on the other hand the poor employee workmen were suffering at not being able to get relief against their unfair dismissal or denial of their unpaid wages; choice was to throw up one’s hand, indulge in moral homilies and hope for the government to take necessary action. But taking this course would have made difficult for me to face my conscience as I would be allowing such a gross injustice to continue. So I opted for directing the State to appoint two more Courts, and even then the government acted only under threat of being proceeded against for contempt of court. Was I interfering in the domain of executive – namely law without any human feelings. I suppose the executive would so want, but a Judge’s conscience would never let him rest thereafter.    

It is not necessary for me to go in detail to recapitulate where, but for judicial intervention many of the urgent public affected matters would have remained in limbo. Thus Supreme Court declaration in gender harassment cases  led  to  the  framing  of  the legislation.  Similarly  but  for  Supreme  Court, the independent status of Central Vigilance Commission would not have been established. Nor  would  police  reforms have been put on the anvil, so as to hold accountable the police for custodial illegalities, notwithstanding that police commissions have recommended police reforms in their reports submitted over decades back.

I have no hesitation in conceding that courts purport to interfere in matters in which they have no expertise. Many courts purport to give directions on how traffic should be regulated, how Amarnath yatra should be arranged, how student elections should be held, how student ragging be controlled, how transfers of senior administrative officers be managed – with respect all matters on which the courts are almost illiterate and exercise of power is unjustified interference in the domain of the executive.

Though I have praised the role of the judiciary, it would not only be unfair but also not factually correct to admit that in recent times more and more occasions have arisen where the court’s interventions are in matters which are totally the preserve and expertise of other instrumentalities.  Thus for courts to seek to lay down principles and direct the education experts,  principals of  public  schools, as to the age at which nursery should admit children, is to arrogate claim to superior knowledge of child psychology against  experts. I can understand the courts issuing directives to the schools to carry out their public obligations and conditions and terms of allotment that a certain percentage of students will be from poorer sectors of the society. The latter is a public act based on constitutional compulsion – the former is a claim to expertise on a topic unfamiliar to courts and exercise in self flagellation.

Similarly one is amazed at one High Court seeking to oversee how pedestrians should be provided safe transit in busy thoroughfares say like India Gate, New Delhi, and direct the technical experts to sit with a  committee of advocates (who by all accounts would be totally unfamiliar even with rudiments of normal measuring technique.)

Or there is the direction how to keep a computerized list of officers, their posting period, and how their transfers should take place. Now to try to supervise day to day disciplinary matters and efficiency of the work of administration by the courts will necessarily and justifiably draw a retort to the judiciary to look within and improve  its  slothy  working  of  majority of courts, ill equipped facilities – total neglect of litigants proper facilities and consideration for their time and convenience – in short to remind the Courts, “Physician heal thyself”.

I am not at all happy that all these matters which should normally have been in the domain of Executive have been initiated by the judiciary, but we must remember that like nature abhors a vacuum, public necessitated requirements abhor a vacuum –  it has to be filled up, if Executive and legislature will not do, the court, believe me, with reluctance finds itself compelled to grope in an unfamiliar arena. Like the admonition of a High Court to rationalize security for public persons and even doubting whether they were ‘national asset’ found immediate welcome response in media, notwithstanding that in my view however disgusting and pompous, the security arrangements for politicians is a matter which public opinion must compel politicians to reconsider – it is not for the Courts to enter this domain.

Now consider the role of Parliament and Executive in sleeping over in matters of public concern, and the restraint shown by courts in withholding to step in press reports that Lok Sabha Speaker, wants to apply the principle of “no work no pay” to those legislators who disrupt proceedings in the House has been universally welcomed. The legislators with cheek in their tongue term it as an abridgement   of  their  Parliamentary  privileges,  but   the  masses   find this self glorification laughable. The conduct of such legislators is a standing shame to the nation and calls for immediate  action. In Spite of this  universal condemnation, legislators refuse to act – the result – public money and ridicule continues to haunt us.

The shame of not ratifying UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), which was adopted by U.N.General Assembly on 10th December,1984 and  entered into force on 26th June ,1987 continues to haunt us though succession of Central government consisting of almost all political parties of various hues (so much for our commitment of political parties to Human Rights.)

The record of successive government belonging to different political parties has been equally impervious to the urgency of ratifying UNCAT. This hesitation, I am convinced arises from the pressure of police and security forces who have convinced their political masters that if UNCAT was ratified, they may not be able to resort to torture and this will make crime detection impossible. But this approach is seriously flawed, apart from being unconstitutional. The government of India reportedly drafted a bill and views of the NHRC have been sought. But, no action. Is it any surprise that people want Courts to intervene to protect their constitutional rights.

The self flattery of politicians that they are concerned with the poorest of the poor has been exploded when dealing with the matter of filling up 2748 extra seats for A.I.I.M.S. and other educational institutions seats for SC/ST  from this academic year. No doubt there was an interim stay for filling up seats for OBC. But there was no stay against filling up seats for SC/ST. The court recognizing the extreme deprivation of SC/ST and specifically clarified that it was not staying so far as SC/ST are concerned. PUCL wrote to the Central Government and all political parties to the effect, asking them to fill up the extra seats for SC/ST. But no action was taken. As a political wag put it, the Central Government parties have no say with SC/ST – and hence did not want to annoy their OBC followers in the bargain.

The opposition to 123 N deal has thrown up Constitutional question demanded by all parties, namely that – no treaty should be made without discussion/ratification by Parliament. M.N. Venkatachaliah Chief Justice (Retd.) Commission recommended it years back. The Courts have in spite of all this, not issued any directive, and in my opinion rightly, because framing legislation is the Parliaments Privilege – but just see how the Parliament is doing its duty.

For  decades there has been a demand that Parliamentary privileges should be   codified.    M.  N.  Venkatachaliah     Chief     Justice   (Retd.)    Commission recommended it as an urgent measure. But Parliament has not moved – if the privileges are codified, courts will be able to supervise it and the actions of small actors legislators strolling about beating passengers in railways or hauling respectable journalists for alleged breach of privilege, will have their wings clipped .No wonder Parliament does not move.

At least judiciary may modestly flatter itself that it is showing greater appreciation of public sentiment. Thus Courts have accepted humbly the rights of public in these words, and not using the power of contempt. Judges have held that, “Let me say at once, we will never use that jurisdiction as a means to uphold our own dignity that must rest on surer foundations. Neither will we use it to suppress those who speak against us. We do not fear criticism nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself ”.

But as in life, so in judiciary, not all is rosy. Thus, we have the unfortunate and demonstrably erroneous decision by the Supreme Court denying government employees the right of collective bargaining and strike and more importantly, purporting to give a gratuitous advice on morality and ethics   of  this most prized right of workers – a view that has pitted working class against the Court. But the government, which could cancel its own circular by executive action refuses to do so – possibly it finds blaming the court a better tactic.  

No doubt we also have instances of superior courts sometimes showing undue over-sensitivity  and self projection by using its power of contempt by ignoring the warning given by Chief Justice Gajendragadkar.  “We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection”. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely.  Wise  Judges  never  forget  that  the  best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, a view reinforced by V.R. Krishna Iyer, J.  “If Judges decay, the contempt power will not save them.”

How one wishes the legislators would also held this caution when strutting about their privileges and proceeding against the public.                   A question of great political morality is pending in the Supreme Court. As is well known, the immoral practice started by late Prime Minister Shri Rao to give personal benefit to each M.P. – one crore every year and (which has now been doubled) – it is costing the public exchequer thousands of crores every year, because State legislators and at some place Municipal Corporations are also the beneficiaries.

A legislator has no special status as against an average citizen apart from what he may enjoy as a member of the Legislature. Public revenue is not the personal property of a government that it can be distributed like fiefdom. Governments at the Centre and the States are not jagirdars that they can distribute State revenues as largesse to whomsoever they like. These are public funds and can only be spent as provided by the Constitution and laws. Any other mode of spending, like the above scheme, will amount to misappropriation and breach of faith by the Ministers.              

There is a public outcry against this not only immoral but illegal practice. But legislators have ignored this with contempt. Matter is before the   Supreme  Court  –  it  has  to  give  a  decision  – if it goes against the legislators, I am quite sure it will start a storm against the judiciary – but can you blame the judiciary for doing its function.

As it is, judiciary is sometime more than considerate to the political expediencies. Thus a challenge by Kuldip Nayar the eminent journalist at the recent change in election law for qualification for Rajya Sabha seats which goes against federalism, inherent part of our constitution and the open voting for Rajya Sabha elections, instead of secret voting, the latter is one of the basic human rights, has been rejected by Courts. Party bosses are quite happy , but why no legislator asks a simple question “how a person from Himachal Pradesh know about the inner mechanism and spirit of Karnataka needs”. And to top all, such legislation has been justified because it has been said in the statement of objects and reasons of the legislation that legislators, because of secret voting, accept money for voting for a rival candidate. All parties subscribed to this object without batting an eye – rather than shouting at the top of their voice. With what face do legislators throw stone at judiciary – not that it matters – judiciary is strong enough not to be deflected from doing its duty under the Constitution.

The Constitution thus both grants and limits powers. It defines the legislative powers, and it confers judicial powers on High Courts and Supreme Court to oversee that the limitations on the various agencies of the state are not transgressed. The Constitution is thus a document of rights of limitations rather than powers.

The Constitution thus provides an opportunity to both continuity and change.

The supremacy of the Constitution thus having been established, the question to be asked is as to how to ensure that the broad sweep of the Constitution and high moral sounding principle which the Constitution guarantees, are fulfilled.

An instrument to carry out the intent of the Constitution is absolutely mandated. In this context, it is well to recollect the warning given in a letter written by Edmund Burke to his friend, C.F.Fox, on 8 October1777 wherein he said that “people crushed by law have no hope but from power. If   laws   are their   enemies,  they will  be enemies to laws,and those who have much to hope and nothing to lose, will always be dangerous, more or less.”

In my view there is no better instrument than the judiciary to fulfill the hopes expressed in the Constitution.I am quite willing to admit that judiciary many a time purport to deal with matters which are beyond its ambit. But it should be noted that the present judicial activism has been brought about as a consequence of the misfeasance of politicians. It will be a pity if ever a climate was created against the exercise of judicial activism, because such an eventuality may lead to the loss of faith in law as an instrument of social change and justice. Judicial activism has always invited controversy from the executive, but at the same time it has invited kudos from the public. But the judiciary also cannot run riot.

I am quite willing to echo the sentiment of an innocent child who on seeing Emperor in a bathtub said without any trepidation ‘the Emperor has no clothes on.’ Broadly I would be willing to say the same about all three namely Legislature, Executive,  and Judiciary, but even if I was to be partial I could only say at the highest that the Judiciary has a small vest on its chest – otherwise it is the same, as others.

Politicians seem to think that the courts ought to give to all the Parliament’s decisions, an automatic seal of approval. But that would mean being false to the oath by the judge who can only uphold the lawful decisions, and can not keep silent in the face of illegality.

I am concerned at the furore that has been raised and which again threatens to put the Judiciary and the Parliament in unseemly confrontation, but which I feel can be avoided, given a calm appraisal by both instrumentalities.

It also needs repeated reaffirmation that the mandate in the Preamble of “We the people” empowers both the Legislature and the Judiciary equally. The transit Legislature elected for particular period can not arrogate to assume the mandate of sovereignty of the people exclusively to itself. Humility in all three instrumentalities of the state and of recognition of their respective limited sovereignty will make it easier for the country to avoid any unnecessary collision.