SUPREMACY OF ORGAN IN A BODY.
There is a general concept that the judiciary is supreme. The
basic premise, as accepted by the constitution, was separation of power. It
traveled to the concept of judicial independence and then even entered into
judicial supremacy. We need to understand these concepts to the core, without
which there is a possibility of entering into fallacies of legal propositions.
An analogy will be easier, akin to the bodily sovereignty. Organic supremacy
cannot be above the bodily interest and existence. It needs to be subservient
to the sovereign.
For example, our body is sovereign in it's functions. It can
grow of it's own, repair itself and control itself, without any external
interference. So as a person, or living organism, our body is sovereign. But this body cannot exist, without the
organs, of which it is made off. Now the question comes of the organic
functional independence. Are the organs capable of functional independence? In
another way, will the organs be able to discharge it's functions without
organic independence?
The duty of Heart, being
an organ is to pump blood to all the other organs. The function of Kidney is to
separate urine and other predetermined impurities from blood. The function of
the Brain is to have supervisory and executive control over all the other
organs and entire body. So the basic structure is the separation of functions.
Each organ has it's own predetermined functions, which are separated so that no
organ encroach into the functions of other organs. When all these organs
functions within it's predetermined roles, without encroaching into the
functions of other organs, it is in the superior interest of the body in
general, which is sovereign.
Now let us look into the
organic independence, which emerges out of separation of functions. Kidney is
independent in it's functions. As the separation of functions do not allow any
other organ to encroach upon it's functions of filtering out urine from blood. Heart is prevented from encroaching into the functions of Kidney. All
are vital organs, without which the body cannot sustain. If body doesn’t
sustain, none of it's organs can sustain independently. So the basic feature of the
separation of functions results into the independence of each organ. Kidney is
independent of filtering urine out of blood is true. No other organ shall
encroach into it's functional independence. Many years, when we repeatedly say
and propagate this preposition, can lead us in to another jargon that 'Kidney is
supreme' in it's functions. All these premises are absolutely true and form the
basic feature of the body sovereign. Even when we express it in different
languages, the foundation is upon the concept of separation of functions. Now
may be for years together may be even hundreds of or thousands of years we
repeatedly say that Kidney is Supreme, and organically it's true as well.
Nothing wrong with it. Kidney is supreme in filtering urine out of blood. But,
when all the people hailing for many years together that the Kidney is Supreme,
Kidney will enter into an activism, forgetting the entire basic premise, that
the Kidney is supreme over and above the other organs.
If under that misconceived notion, if Kidney over a period of
time start pumping the blood or taking over the executive control of all other
organs from brain, then one can imagine the disaster awaited for the body.
The independence and Supremacy of Kidney is only to the extent
of filtering urine out of blood, and nothing beyond it. If Kidney declares
itself to be independent and supreme and refuses to be accounted to brain, it
can eventually destroy the Kidney itself. The greater interest of the body is
to keep the basic features of separation of functions intact.
So the organic independence cannot be above the interest of the
body itself and encroach into the functions of other organs. The organic
independence of judiciary is to function within the frame works of
constitution, and not to function without frameworks.
Who is the master and provider of judicial independence? Where
from judiciary derives it's independence? It's not bestowed from divine gods
like religious priesthood or gathered from wild, as that of the powers of
farming. It's neither a natural power
inherent upon the institution, like the powers of a mammoth or a wild cat. It's the people who created this institution
and provided the independence to the judiciary. It's the people of this nation,
who are the provider of the powers to the judiciary through the constitution
and it's the people who utilise the benefits of such independence. Rather the
people of the nation are the creators, sustainers, providers and consumers of the
powers bestowed upon the judiciary.
This truth to the core cannot be ignored by anybody. Hence the people have the very absolute right
to determine, what are the depth, extent and ambit of such powers and
independence also.
The parliamentary form of democracy upon which our
constitutional mechanism is built up is supported by four pillars, three being
expressly construed by the Constitution itself and the fourth one,
not being built up by it, but assured its existence through Article 19.
In a form of monarchy, all the powers are invested in the
monarch, who is supreme in all aspects. The concept of power is divided broadly
into three parts, namely, law making, law implementing and law interpreting. As
the modern democracy developed, which is broadly based upon the famous
definition of Abraham Lincoln, ‘by the
people, for the people, of the people’, the said powers are considered to be
distributed among the three organs, called parliament, executive and judiciary,
none encroaching to the authority of the other.
If in any case any of these powers happens to be concentrated in
one body, it amounts to tyranny, causing serious dent to the concept of
parliamentary democracy itself. Even though water tight compartments of the
functions are not practical, the doctrine of restraint is the greatest virtue,
by which each organ can protect its dignity by not encroaching into the others
realm and develop mutual respect in the greater interest of nation.
Many people think that the independence of judiciary is a basic
structure as it is. Where as no organ can function independent of other organ.
The concept of independence itself is a myth, not so provided by the
constitutional mechanism. The independence per-se is against the democratic
principle itself. Our constitution never ever envisages for the independence of
Judiciary and the development of such a myth over a period of time, has only
benefited some vested interests. The constitution always propagates of
the separation of powers. Article 50 of Constitution in part IV( Directive
Principles of State Policy) reads as follows:
“50.Separation of judiciary from executive.-The
State shall take steps to separate the judiciary from the executive in the
public services of the State.”
Hence the Constitutional
mechanism is envisaging the separation of power and not the independence of
judiciary as such. Independence of judiciary is the term developed by the
judiciary itself and by reiterating time again has formed a cult in the public mind
and declared itself as a basic structure to protect a power structure not
answerable to anybody, not even to the people of India, who are the sovereign
in a democratic nation. The Preamble of the Constitution declares that:
“WE, THE
PEOPLE OF INDIA, having solemnly resolved to constitute India into a
sovereign...........................”
It is the constitutional mechanism which envisages that the
people India declares itself to be sovereign and all other powers are
exercising powers as delegates of the people. It is that none of the pillars
are having its own power, but the powers so delegated by the people of India.
Hence none of these powers can exist independently, being unanswerable to
anybody. Only the people of India are not answerable to anybody in their
collective decision making, through ballot, based upon the adult franchise.
Rex=The King(England)= The People of India
(India)
The concept of separation of powers and judicial restraint is
discussed in detail by Hon’ble Supreme Court in the judgment of Municipal
Committee, Patiala vs Model Town Residents Asson. & Ors on 1 August, 2007.
To quote from the judgment is as follows:
"Any law made by the
Legislature, which it is not competent to pass, which is violated of the
provisions in Part III of the Constitution or any other constitutional
provision is ineffective. It is a settled rule of constitutional law that the
question whether a statute is constitutional or not is always a question of
power of the Legislature concerned, dependent upon the subject matter of the
statute, the manner in which it is accomplished and the mode of enacting it.
While the courts can declare a statute unconstitutional when it transgresses
constitutional limits, they are precluded from inquiring into the propriety of
the exercise of the legislative power. It has to be assumed that the
legislative discretion is properly exercised. The motive of the Legislature in
passing a statute is beyond the scrutiny of courts. Nor can the courts examine
whether the legislature had applied its mind to the provisions of a statute
before passing it. The propriety, expediency and necessity of a legislative act
are for the determination of the legislative authority and are not for
determination by the courts.”
The independence of Judiciary is the requirement of Rule of Law,
to prevent the accumulation of power. The very purpose is that the law making
authority, the law implementing authority and the law interpreting authority
are not vested in one forum, but separated. So the very concept of independence
of judiciary can be lost in both ways, if the Executive encroaches to the
authority of Judiciary or if the Judiciary encroaches to the authority of
parliament or executive. In either case the independence of judiciary is at
stake as the result will be
accumulation of power. As far as the nation and it's people are
concerned, both are equally dangerous. Hence the very foundation of independence of
judiciary can be lost even when the judiciary encroaches upon the realm of
other organs of law making and law enforcing.
Judicial independence is the concept that the judiciary needs to
be kept away from the other branches of government. That is, courts should not
be subject to improper influence from the other branches of government, or from private or partisan interests in deciding the inter party disputes.
Judicial Independence is vital and important to the idea of separation of powers.
Human nature of functioning is forward looking, not backward
looking. If the functional independence of a judge to be made independent, the
requirement is to protect him from present
and future temptations or
assaults. The independence of
Union Public Service Commission, Comptroller and Auditor General of
India and Election Commission are protected by protecting the current terms of engagement, tenure, and
protected from the temptations of post
retirement appointments. The independence of Judiciary also need to be
protected in such way, by protecting from the temptations of post retirement
appointments. Even the CAGs, CECs, UPSC
and Judges who were appointed by the Executive were most independent in their
discharge of constitutional duties.
Past is not a consideration for independence of Judiciary.
The present is protected constitutionally by fixed tenure,
protecting the conditions of service, protection of pay and allowances etc.
The future is not protected as done in the case of CAG[1]
or UPSC[2].
Either the retirement age can be raised, or the post retirement appointments
can be avoided.
Independence without accountability is tyranny. Hence the
Judicial independence cannot be total without judicial accountability.
Otherwise it is not independence, but amounts to tyranny only. So, to protect Judicial
Independence, accountability is also an essential feature. Both are the two
sides of the same coin. “Power tends to corrupt, and absolute power corrupts
absolutely”- as Lord Acton predicted, the matters of our judiciary are
reaching.
As
the judiciary has entered into the executive and parliamentary functions, it
has violated the basic structure of the constitution, namely separation of
powers and judicial review. Now the executive as well as the parliamentary
authorities are concentrated to the judiciary, and hence the separation of
powers is lost. Further, when the executive authorities are exercised by the
judiciary, there is no scope for the judicial review of the said executive
action, and hence is in violation of the ratio laid down by the Supreme Court in “His Holiness
Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (case
citation: {(1973) 4 SCC 225)}, {(1973) Supp SCR 1}”, where it was held that the
judicial review is the basic structure of the Constitution. The concept that the parliament cannot amend
the basic structure does not imply that judiciary has the authority to amend or
destroy the Basic Structure of the Constitution.
[1]
Article “148(4) The Comptroller and Auditor-General shall not be eligible for
further office either under the Government of India or under the Government of
any State after he has ceased to hold his office.”
[2]
Article “319. On ceasing to hold office—(a) the Chairman of the Union Public Service Commission shall be
ineligible for further employment either under the Government of India or under
the Government of a State;”
Good article!!
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