SPEECH AT FAKHRUDDIN ALI AHMED MEMORIAL LECTURE BY CHIEF JUSTICE RAJINDAR SACHAR OF DELHI HIGH COURT (RETD) ON SATURDAY, 1ST MARCH, 2008 AT AIWAN-E-GHALIB, AIWAN-E-GHALIB MARG, NEW DELHI-110 002.
Relations amongst the Executive, Legislature, and Judiciary in Parliamentary system of government are never very cordial – in fact a little distance, reserve, and exclusiveness from each other is a requirement of independent functioning of Judiciary.
But unnecessary suspicion of motives of each other by either of the three instrumentalities of State is unhealthy for the nation. But by the very nature of functions assigned to each instrumentality, some frictions will naturally continue. It is essential therefore to look objectively at different aspects of constitutional principles.
Circumstances are taking an ugly turn by Parliament’s so called threatening debate to amend the Constitution so as to prohibit what the Honorable Members feel is an encroachment by Judiciary on what
Executive considers it as its preserve. This is an unfortunately immature reaction from such an august institution as the Parliament which must be aware that Judicial Review is a basic feature of the Constitution and is therefore unamendable. Of course the plea that Judicial Review should be resorted to in exceptional cases, but not become a tool for immature interference by the Judiciary in functions clearly assigned to legislature and Executive would be readily accepted by the Judiciary itself which has no vested interest of its own. May one expect that when framing legislation regarding judges, Honorable Members of Parliament will at the same time pay heed to the plaintive cry of the public to pass the Lok Pal Bill which is being promised for over the last 30 years – and will M.P.s also file their asset statement, failure of which resulted in the anguished reminder being given by Prime Minister. The spiritually searing and stern warning by Jesus Christ to the mob “Let him throw stone, who has not sinned” applies equally to the Executive, Legislature, and the Judiciary.
Wherever there is a written Constitution, the Supreme law is the law of the Constitution and for even 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.
It stands to reason therefore that if any occasion arises where the Executive or the Legislature has 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.
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.
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.”
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.’
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 its true interpretation, 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.
Judges themselves accept judicial restraint. 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”.
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 as they are in some jurisdictions like 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.
The criticism of judicial activism as such is untenable. Courts in India 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.”
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 earlier judgment 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.
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 arises more out of frustration at their partisan actions being challenged before the judiciary rather than the usurpation of power and jurisdiction by the courts.
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 had 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. But such was the indifference to the rights of electorate, the ultimate sovereign, that instead of welcoming this opportunity, all political parties let loose a flood of diatribe against the judiciary, accusing it of exceeding its powers and that it was entering the political field. This was an unworthy ploy and diversionary tactics by the political parties to prevent the glare of publicly on their hidden working agenda. But as this direction by the Court would have enabled the citizens to effectuate their fundamental rights to know, the Court quashed the attempt at nullifying its direction and thus preserved the right of the electorate. 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.
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 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 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 and the Legislature. I also 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 conditions for admission to public school including the age at which nursery school 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 obligation to comply with the conditions and terms of allotment that a certain percentage of students will be admitted 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 subjects unfamiliar to courts and an 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”.
Having said this, is it too much to ask the Executive and the Legislature to do similar introspection and examine for itself the role of Parliament and Executive in sleeping over important matters of public concern, and the restraint shown by courts in those matters. Press has reported that Lok Sabha Speaker, wants to apply the principle of “no work no pay” to those legislators who disrupt proceedings in the House and this 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.)
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 and privileges. Thus Courts have humbly accepted; “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.” How one wishes the political establishment and legislators would also pay similar heed to this caution when strutting about their exclusive privileges.
Even if they choose to ignore the caution as reflected in the judicial warnings, let them at least pay heed to the advice and painful cry of the highest in Executive and Legislature field. Speaking at All India Whips Conference, the Vice President of India and Chairman of Rajya Sabha in his mild cautionary manner but mincing no words had this to say to the legislators, “Most important issue of concern today is the decreasing credibility of our legislatures as effective institutions capable of delivering public good and contributing to effective formulation of laws”. “Exactly 23% of MPs elected in 2004 had criminal cases registered against them – over half of these cases could lead to imprisonment of five years or more. The situation is worse in the case of MLAs,” failing to discharge its two fold brief, legislate and deliberate, and that the country’s top law-making body had fallen short of people’s expectations.”
The current Lok Sabha has already lost 21% of its time due to disruptions, up from 19% for the 13th House, and that the situation had worsened despite outrage, as the wastage for the 12th Lok Sabha was 10.66% and much less for earlier Houses.
The number of sittings of Rajya Sabha has come down from an annual average of 90.5 in 1952 – 1961 to 71.3 in 1992 – 2001, a decline of 20%.
“The annual average of number of bills passed by Parliament has come down from 68 in 1952 – 1961 to 50 in 1992 – 2001.”
“That the upper House which is supposed to be somewhat immune from the partisan passions of the elected Lok Sabha, has fallen a casualty of the pattern. “The loss of time in Rajya Sabha has been particularly high in recent years. The situation in the states is worse.”
He cautioned that, “the impact of disruptions remains on the public mind”.
“The treasury benches shy away from substantive discussion of issues of public concern; the Opposition prefers to resort to the so-called Zero Hour only to mention these issues in hyperbolic terms. Deliberation issues reduced to a zero-sum game.”
“Members indulging in disruption possibly do not understand the implications of being paid, full-time, public servants.”
I have my doubts whether Legislature will act in spite of this admonition by such high dignitary. Legislators may legitimately taunt Judiciary by invoking the strong criticism of the Speaker at the alleged misplaced judicial activism by the judges. But he being a jurist has also admitted that Judiciary is a great bulwark for the upholding of the
Constitution. But may I, in all politeness request the political parties and the legislators to show equal concern and alarm expressed by the Speaker of Lok Sabha and his admonition to the members, which is reported in the daily Newspaper (The Tribune, Chandigarh) thus; “You are all working overtime to finish democracy in this country …….It is a matter of great sorrow……on the one hand, you are asking for more sittings…so many notices have been given by so many honourable members. These important matters cannot be discussed. The discussion on the motion of thanks on the President’s address is to start today.” Mr. Chatterjee said in the Lok Sabha regretting that the members were “not willing to work”.
Finding the members in an unrelenting mood, Mr. Chatterjee said “with great sorrow, sadness and resentment, I am forced to adjourn the House”. (Courtesy TheTribune dated,29/02/2008 New Delhi).
Will it be a breach of privilege for me to request the legislators to heed his advice and look within. The conditions in state legislatures are much more horrendous and alarming. And yet people do not find legislatures attempting to look within. No, I am not suggesting that Courts should fill this void – that may be overstepping. But then it is possible that if at this inaction of the legislatures people may knock at the door of the Judiciary, it may possibly create such public pressure for Courts to step into areas which could have been avoided if the Executive and Legislature had filled the gap – it should be remembered that nature abhors a vacuum. I am quite willing to admit that in these circumstances Judiciary may step in with matters which normally it would have avoided.
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.
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 taken 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 all instrumentalities.
Some even in the Judiciary mouth the unacceptable observation that constitutional trade off for independence of Judiciary is that the judges must show “judicial restraint” – speaking jurisprudentially it may not be objectionable to suggest judicial restraint on the part of judiciary itself – but this view is hurtful if it suggests that judges must look over their shoulders lest the executive feel annoyed at their decisions. Independence of the Judiciary and judicial review is the mandate and very life blood of the Constitution – it is not dependant on the creature of the Constitution like the Legislature or the Executive. Judiciary has always followed the hallowed maxim ‘ Let Heavens fall – but justice must be done’. Judiciary is not weak, nor the people at large so spineless that the arrogant empty threats of temporarily elected Executive and Legislature can deflect the judiciary from its path of Constitutional rectitude and duty.
Let us recollect the wise words of 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. 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.”
Judges are of course not vain enough to hold that the courts have answers for every problem that concerns the society. They lay no claim to such infallibility. They fully realize that in the ultimate analysis, the problems of the society must be sorted out by the people and their representatives in the Legislatures and in the arena of politics.
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 cannot arrogate to assume the mandate of sovereignty of the people exclusively to itself. Of course similar caution applies to the Judiciary too. 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.
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 the Legislature, the Executive and the Judiciary, but even if I was to be partial I could only say at the highest that the Judiciary has at least a small vest on its chest – otherwise it is the same, as others.