LAW RESOURCE INDIA

Equality is a fine balance

Posted in CONSTITUTION, COURTS, DEMOCRACY, JUDICIAL ACTIVISM, JUDICIARY, JUSTICE, LEGISLATURE, SUPREME COURT by NNLRJ INDIA on January 18, 2010

By  Soli J Sorabjee in The Indian Express

The prime minister’s recent statement that each organ of the state has “constitutionally assigned roles” and “each must respect the functions of the other” raises the critical question about the legitimate role of each state organ.

The constitutionally assigned role of Parliament and the legislatures is to enact laws and that of the executive is to implement the laws. One salient fact must be remembered. The powers of Parliament and legislatures under our Constitution are not absolute. They are subject to certain limitations, one of which is legislative competence. Another important limitation is the fetter of fundamental rights. Our Constitution expressly provides that any law which contravenes any fundamental right is void. Again, action of the executive must be within constitutional and statutory limits. It is axiomatic that the limits of power and their transgression cannot be determined by the limited power itself. Therefore it is for the judiciary to determine and enforce constitutional limitations. This aspect was extensively debated in the Constituent Assembly. Ultimately it was accepted that the question whether a law or executive action violates any fundamental right was to be decided by the judiciary which was its legitimate function.

The judiciary invalidates a statute if it is clearly in conflict with the Constitution. Our courts have not been trigger happy in striking down laws. Laws are not invalidated because the court disapproves of the policy underlying the legislation or its wisdom. Statistics and research would establish that in a vast majority of cases legislation, especially socio-economic legislation, has been upheld. Undoubtedly there have been at times judicial aberrations. This cannot be avoided because infallibility has not been divinely guaranteed to the judges. Surely that cannot be a reason for clipping the wings of the judiciary.

Suppose a law is enacted by an overwhelming majority that persons belonging to certain castes or community are ineligible to hold certain constitutional offices. Can the court shirk its duty of striking it down as discriminatory?

Reservation to the extent of 27 per cent for OBCs in higher educational institutions has generated furious controversy. The court is not concerned with the wisdom or otherwise of the reservation policy but it has to consider its impact on fundamental rights, especially the guarantee of equality. Leaving aside the recent Supreme Court stay order let us test the issue on principle. Suppose the percentage of reservation is increased — God forbid —to 77 per cent. If the court finds that the hypothetical 77 per cent reservation violates the fundamental right of equality, should it fold its hands in despair and refuse to interfere because the majority of people and several political parties are insistent about it? Such a course would not be exercise of judicial restraint but plain and simple judicial abnegation. The rationale of guarantee of fundamental rights in the Constitution and their protection by an independent judiciary is precisely to check the majority’s fleeting impulses and desires which are contrary to the cardinal values of the Constitution.

To dub judicial intervention in case of violation of fundamental rights by the legislature or by executive inaction as an overreach is tantamount to questioning the very legitimacy of judicial review by an independent judiciary which is a basic feature of our Constitution.

Courts certainly cannot interfere with the internal functioning of Parliament and legislatures about convening sessions, their timing and duration, the allotment of seats to members, its agenda of business and related matters. These are within the sole purview of the House. Judicial intervention is out of bounds even if there is malfunctioning in the House. However, if in exercise of powers and privileges claimed by Parliament the fundamental rights of a citizen are infringed, it is the duty of the court to adjudicate his complaint and give relief if the complaint is justified.

Often the occasion for judicial intervention is the inaction of the executive branch. In 1976, Parliament passed the Bonded Labour System (Abolition) Act. For a long time the act was not enforced till an NGO approached the Supreme Court. The court, departing from its traditional role, issued several directions. As a result the exploited bonded labourers secured much needed relief. Can this intervention be regarded as judicial overreach?

The court was confronted with the pervasive problem of sexual harassment of women in the workplace. The Court in its celebrated judgment, Vishaka, issued several directions which included definition of sexual harassment, the preventive steps that can be taken and also devised a complaints mechanism. Justice J.S. Verma, the architect of the celebrated judgment, was at pains to point out that these legally binding directions were pro-tem till Parliament enacted a law on the subject. Can the judgment in Vishaka, a classic instance of ad-hoc judicial legislation, be regarded as overreach? There can be two views about it but not about the beneficial effects of the judgment.

The principles of judicial review laid down by the Supreme Court in the Bommai case and the Bihar assembly dissolution case were timely and salutary. Their wholesome consequence has been to prevent wanton onslaughts on the federal fabric of our Constitution and to restrain the Centre from yielding to the temptation of toppling state governments.

Problems really stem from the judiciary’s role in entertaining Public Interest Litigation petitions. Some orders and directions passed are beyond the judicial sphere and at times smack of judicial adventurism. For example, direction to the administration to construct roads and erect buildings, to secure lands in a particular locality for locating some industries, directions for huge ad-hoc monetary payments to riot victims which have serious budgetary implications. Again, directions to ensure timely running of trains or to relieve congestion in the city or combating the menace of monkeys are certainly instances of judicial overreach. Judges must withstand the temptation of publicity and also rid themselves of the belief that the judiciary alone can solve all the problems that afflict our nation and remember that PIL is not a pill for every ill.

There is no panacea to the problem of tension between the judiciary and the legislatures. Some degree of tension is inevitable. However friction can be avoided if each organ of the state correctly understands and respects the constitutional functions of the other organs.

The writer is former Attorney General for India

http://www.indianexpress.com/news/equality-is-a-fine-balance/28323/0

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