CAN JUDICIARY REPLACE AND SUBSTITUTE THE CONSTITUENT POWERS OF THE PARLIAMENT?
The growing misconception, now largely being propagated by
certain vested interests is that the Supreme Court of India enjoys a concurrent
authority, together with the parliament to amend the Constitution! There is
nothing so irrational, especially under the doctrine of basic structure as laid
down by the Supreme Court itself through Keshavnanda Bharati case[1].The
parliamentary democracy is the basic structure as laid down by the said
judgment. Any effort to thwart the parliamentary democracy will be demoralising
the basic structure of the constitution, which is primordial, transcendental
and inalienable. Public Interest Litigation, which has grown into publicity
interest litigation under Article 32 of the constitution is not a shortcut to
supplant parliamentary democracy or constitutional supremacy. Interpretation of
statue is to give effect to the law for the time being in force and not to
cause amendments to the constitution. Amendments to the constitution can be
effected only under the procedure laid down under Article 368 of the
Constitution by the Parliament and the same is binding the nation. The law of
the land is laid down by the people of India, acting through their elected
representatives. Otherwise it leads and amounts to the dictatorship. If the law
is not made by the people and is imposed upon them, even it is by judiciary, it
is nothing but the freedom lost for ‘we the people’ and hence amounts to
dictatorship, reducing the people into slavery. The tyranny of the unelected tantamount
to dictatorship, even if it is judicial one. No dictatorship can be tolerated
by the democratic people, even if it is judicial dictatorship. We have seen
challenges to democracy in many of our neighbouring countries, most of the
times from the unelected military or armed forces. But in India, the democratic
institutions, especially parliament, executive and judiciary have functioned
without any interference from the armed forces, In those nations, the reasoning
given for military coup were either loss of faith in political leadership or
caused by suspending or even amending the constitution by any organ without
resorting to the democratic process. Always it was executed under the pseudo
claim of preserving national interest. But the end results were the most
suppressive regime for the common people, where the entire power and resources
were enjoyed and looted by a sect of people. The fact remains that, people are
the only custodians of their own interest. No organ, class of people or group
of people can assume themselves as the custodian of people’s interest. If
anybody assumes such pseudo custodianship, then the sole purpose is to mark
their vested interests. The well used formula is to assume power in the name of
protecting the people’s interest and loot the people of their all resources
after establishing a tyrannical and brutal regime. Once the power is vested
with the organ which is not accountable to people, and is enjoying an unbridled
power, then the subsequent step will be to implement it's dictatorship
brutally. This is the lesson which we
are learning from history.
Now the question before us is, whether the judicial encroachment
into the constituent powers of the parliament, which is elected by the people
tantamount to an effort to become Supreme Power of the nation. The demand is
for judicial supremacy in the nation. As a matter of hypothesis, let us assume
that the present regime of the judiciary is most benevolent to the people of
India. It is neither an endorsement nor a denial in factual situation. Just a
hypothesis. But it does not assure in any means that the future regimes will
also be equally benevolent. It can in future turn to be tyrant and brutal also.
When the parliamentary authority or the elected executive authority turns out
to be brutal, the people have a remedy through ballot. Time and again we are
seeing the revolutions taking place through ballot. Many oppressive or errant
regimes have been thrown but by the people through ballot. It's continuously
happening with bloodless revolutions.
But if the dictatorial judiciary, which amounts to the tyranny
of the unelected, turns out to be brutal the nation will be left with no
remedy, other than succumbing to it. Then the only remedy possible will be
bloodshed, to regain the freedom of nation from it's own organ. If any organ
grows beyond the body, it's cancer. Such a growth can damage the whole body
itself. Hence any efforts by the judiciary to overreach into the constituent
powers of the parliament under the guise of PIL or Article 32 of the
constitution will be destructive to the basic structure of the constitution.
The judicial review is not an authority given to Supreme Court/
High courts to encroach into the constituent or law making powers of parliament.
If Supreme Court / High Courts in any means make law, then also there shall
have another authority to review the same. The same authority cannot review
it's own Act effectively. Judicial review and separation of powers also being
the primordial, transcendental and unalienable basic structure of the
constitution, only parliament under it's constituent powers as per Article 368
of the constitution can amend the constitution. People have effective powers to
correct the parliament, if it errs. But there is no such remedy available to the
people, in case of judiciary. Even impeachment is not practical and effective
remedy. Every judge before taking over the office takes the oath of office,
pledging to protect and uphold the constitution. But, when the same judge
encroaches into the constitution amending efforts, it amounts to violation of
oath of office itself.
The judges who fail to protect the democracy fail in to
understand the fact that they themselves will have to face the tune of tyranny,
post retirement. Lifelong nobody is going to be the part of judiciary. One fine
day every judge is liable to retire. So the damage they cause to the democratic
process of power sharing by encroaching into the domain of parliament can be
counterproductive to their own interest in such a way that, post retirement
they will be forced to face the dictatorship of future judges to which he will
have no remedy. As long as the judge who undermines the parliament or the
people is in power, he will be able to dictate his terms. But once he demits
office he will also be forced to face the tune of dictatorship, even though
it's judicial. It is better for the judges to remember this fact before
undermining the authority of parliament and defame the political process.
The only rational remedy to the filth in political executive is
to form an ever vigilant electorate, though a hyperactive and visionary media.
Causing such filth to spread into judiciary also will be dangerous. Already
there are repeated allegations of corruption and nepotism in judiciary, to
which people are not having any remedy as per the present system. By various
judgments of the courts, the judges stand above law. No effective inquiry or
investigation can be conducted against any judge even for any cognizable
office. No FIR can be registered even if allegations of murder, corruption or
rape are reported. All these are damaging the credibility of a sacrosanct
institution of the nation. The most glaring unfortunate fact is that the remedy
brought in by the people through their duly elected representatives also being
thwarted with same latent motives. Heydon’s mischief rule is not applied while
making such damage to the people’s will through misconceived interpretations.
In many ways, the enactment of the 99th Amendment was intended at redressing
the mischief created by the judges-2 &3 judgements. It was Parliament’s
effort at salvaging some of its lost space in our constitutional structure. So the bottom line is that the judiciary do
not have any authority to amend or rewrite the constitution, nor is empowered
to function as a third chamber of parliament. The law of the land shall be laid
down by the people of the country through it's elected representatives.
Article 32 of the constitution is envisaged for the
enforcement of fundamental Rights through prerogative writs. The writ
jurisdiction of Supreme Court under Article 32 of the Constitution is for the sole
purpose of enforcement of Fundamental Rights of the citizens, under no stretch
of imagination, Supreme Court of India can enter into the constituent powers of
the Parliament. Interpretation of statue shall not amount to amending it or
enacting it. The judiciary does not hold any authority to make constitutional
provisions or to amend it, as it amounts to violation of Basic Structure of the
Constitution, which is primordial, transcendental and inalienable. The judgment
is Keshavananda Bharati case has laid down the doctrine of Basic structure by
the full court and is not yet over ruled for any purpose. The said judgment has
laid down that separation of powers is the basic structure of constitution.
This stands good even today, the encroaching into the constituent powers of the
parliament by Supreme Court under Article 32 of the Constitution amounts to
destruction of basic structure of the constitution itself. The poser to amend
the constitution by way of annulling, replacing or addition, vests under Article
368 with the parliament, which is directly elected by the people of the nation.
The basic structure
theory as laid down by the full court of Supreme Court of India in Keshavananda
Bharati case reinforces this proposition and accepts the plenary powers of
parliament to amend constitution. It further goes ahead to lay down the ratio
that, the parliament is even empowered to amend part-III of the Constitution,
which provides for the Fundamental Rights of the citizens. But this plenary power shall not amount to
destroy the very foundation of the constitution itself. If such amendment
totally destructs the constitution itself, or rather destroys the corner stone
of the nation itself, then that cannot be permitted. So the ratio of the said
judgment is that the acceptance of the plenary power of the parliament to amend
the constitution, and not otherwise. The parliament is empowered to amend even
the Fundamental Rights of the citizens. The reason being the parliament
represents the people, being elected through adult, secret, direct franchise.
And the people of India are the sovereign, not executive or judiciary.
But it is sad to say
that the ratio laid down in Keshavananda Barati case is not understood in it's
right perspective and even after 4 decades, the said concept still not has
taken a concrete shape. A concept, which failed to take concrete shape even
after a generation has changed needs to be revisited for it's veracity and
steadfastness. If the said concept still
remains in it's pristine shape of soup or rather wax, which takes it's own
shape depending upon the whims and fancies of the onlooker, then such an uncertainty
cannot be the foundation of a settled law. Each
time it will take the shape or it's container. The sustenance and
development of the nation depends upon the settled law and the ever changing
shape of the laid down principle can cause irreparable damage to the existence
of nation. Even when the law needs to be dynamic and vibrant, suiting to the
circumstances, the principles based upon which laws are made or interpreted
needs to show some level of constituency.
Hence, at least we
shall first understand correctly, what the ratio is laid down in the given
judgment, without resorting to mere verbalism.
Further, the powers which is enjoyed
by the judiciary is, what is given by the people to it, who are the creator of
the judiciary, and nothing it enjoys as power, beyond the reach of the people.
The inherent powers which is enjoyed by the judiciary are not the unlimited and
unbridled tyranny, but limited to the purpose of securing and enforcing the
principles of natural justice. Whereas the present scenario shows that the
inherent powers are used by the apex court to tear off and vitiate the
principles of natural justice. The power which is supposed to be used to
protect the justice is being perceptively used to destroy it.
[1] His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of
Kerala and Anr. ({(1973) 4 SCC 225)}, {(1973) Supp SCR 1}
