THE SUPREME COURT Vs FEAR & FAVOUR

In the land mark judgment of Keshavanda Bharathi v. State of Kerela4, the apex court of India the propounded the doctrine of basic structure according to which it said that the legislature has power to amend the Constitution, but such amendments shall not change the basic structure of the Constitution, The Constitutional bench made no attempt to define the basic structure of the Constitution. S.M. Sikri, C.J mentioned five basic features:

i. Supremacy of the Constitution.

ii. Republican and democratic form of Government.

iii. Secular character of the Constitution.

iv. Separation of powers between the legislature, the executive and the judiciary.

v. Federal character of the Constitution.

Justice Sikri observed that these basic features are easily distinguishable not only from the Preamble but also from the whole scheme of the Constitution. He further added that the structure was built on the foundation of dignity and freedom of the individual which undoubtedly cannot be amended. It was also observed in that case that the above are only illustrative and not exhaustive of all the limitations on the power of amendment of the Constitution.

Literally the notion of judicial review means the revision of the decree or sentence of an inferior court by a superior court. Judicial review has a more technical significance in pubic law, particularly in countries having a written constitution which are founded on the concept of limited government. Judicial review in this case means that Courts of law have the power of testing the validity of legislative as well as other governmental action with reference to the provisions of the constitution. The doctrine of judicial review has been originated and developed by the American Supreme Court, although there is no express provision in the American Constitution for the judicial review. In Marbury v. Madison, the Supreme Court made it clear that it had the power of judicial review. Chief Justice George Marshall said,“ Certainly all those who have framed the written Constitution contemplate them as forming the fundamental and paramount law of the nations, and consequently, the theory of every such Government must be that an act of the legislature, repugnant to the Constitution is void”. There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between the Constitution and the Acts passed by the legislature, the Courts follow the Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts declare void the acts of the legislature and the executive, if they are found in violation of the provisions of the Constitution.

The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can declare a parliamentary enactment invalid. On the contrary every court is constrained to enforce every provision” of the law of parliament. Under the constitution of India parliament is not Supreme. Its powers are limited in the two ways. First, there is the division of powers between the union and the states. Parliament is competent to pass laws only with respect to those subjects which are guaranteed to the citizens against every form of legislative encroachment. Being the guardian of Fundamental Rights and the arbiter of constitutional conflicts between the union and the states with respect to the division of powers between them, the Supreme Court stands in a unique position where from it is competent to exercise the power of reviewing legislative enactments both of parliament and the state legislatures. This is what makes the court a powerful instrument of judicial review under the constitution. As Dr. M.P. Jain has rightly observed: “The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution.”

In India, the constitutional supremacy was explicitly reiterated in the Minerva Mills case whereby the Supreme Court held that “government, legislature, executive and judiciary is all bound by the Constitution, and nobody, is above or beyond the Constitution.” Every law made by the parliament is subject to interpretation by supreme court in the light of ideals and objectives of the constitution and if they go beyond or above that, they can be held null and void. Indian Constitution does not have express provision of separation of judicial and parliamentary supremacy but it’s not quite unclear also. It is the prerogative of the parliament to amend the constitution and make the laws; it is the duty of the judiciary to decide if basic structure of the constitution are transgressed by such laws. One the parliament has done its job, its Supreme Court which decides its constitutionality through judicial review. There have been conflicts between parliamentary supremacy and judicial supremacy. The best example is of National Judicial Appointment Commission when Supreme Court pronounced its verdict on the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), declaring them to be ultra vires the Constitution. It is true that constitution has given superior powers of review to judiciary to decide the constitutionality of the acts passed by legislature. Discharge of the judicial functions should not be seen as against the will of the people for; constitution derives its authority to give this power to Judiciary. The SC enforced the power of judicial review in various cases, as for example, the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1971), the Kesavananda Bharati case (1973), the Minerva Mills case (1980) and Supreme Court AOR Association Vs. Union of India (2016). Judiciary should be free from the influence of the executive so that it could promote the ends of justice. If the government is one of the parties to a dispute the judges should protect the citizens against executive encroachment. No executive authority should interfere in or exercise control over the working of law courts. The judiciary protects the rights of people against the encroachment of the government or any other association or individual. The superior courts enforce the fundamental rights of the people through the appropriate writs Judicial order- in the nature of Habeas Corpus, Mandamus, Certiorari, Quo-Warranto etc. Both parliament and the judiciary should not exceed their limits as defined by the constitution of India so that harmony can be maintained between the legislature and judiciary. The new socio-economic trends are to be kept in mind before making the legal provisions and their interpretation both in strict and liberal sense. Participatory democratic system must be made effective and there must be proper check on the active interaction between the people and their representatives is responsible for the conflict between the parliament and judicial system in India. Judiciary and the legislature must be strengthened in terms of its special power of judicial review to check and contain the excesses of other two wings of the government.

The Constitution of India provides that the Supreme Court may review and revoke the law made by Parliament and if there is no law on a particular issue, the Supreme Court’s decision is considered law of the land

Subsequently, in L. Chandra Kumar v. Union of India8, the Seven-judge Constitutional Bench stated:

“that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure”.

But how has the Supreme Court fared during this time period ? Well “The pre-2014 apex court was not hesitant in going against the Central executive in matters involving high political stakes. This was evident in the 2G licenses cancellation cases and coal scam cases. Though the coal-gate case verdict was delivered in September 2014 after the coming of NDA government, its hearings took place in the last leg of UPA-II, during which the court passed several oral remarks (including the now famous “CBI is caged parrot” remark), badly stinging the government. The interventions of the court drew a lot of cheers from the media and public, which hailed judiciary as a crusader against corruption and misgoverance.

The 1980s Supreme Court was highly praised for this. Influential legal scholars — whose views continue to hold sway in law schools today — lauded the destruction of pesky “Anglo-Saxon” procedural rules, which stood in the way of “complete justice”. Judges were painted as crusading heroes. In words that might have embarrassed Louis XIV, the Supreme court was called “the last refuge of the oppressed and the bewildered”. By the 1990s and the 2000s, under the misleading label of “judicial activism”, the court was beginning to engage in a host of administrative activities, from managing welfare schemes to “beautifying cities” to overseeing anti-corruption initiatives. The constitutional court had become a Supreme ‘Administrative’ Court. This, too, was justified on the altar of necessity: politicians were corrupt, bureaucrats were inefficient, and things didn’t move. Someone had to come and clean it all up.

A combination of viewing the judiciary as an infallible solution to all social problems, and viewing procedure — that would otherwise constrain judicial power — as an irritant that stands in the way of a truer, purer justice has created the perfect storm that we see today. The first allows a judge to project her own social and political views as universally valid and beneficial; the second allows her to ignore the barriers that stand between her and the implementation of those views. Wrapped up in patriotic zeal, a judge does not stop to think whether he is authorised to compel all cinema halls in the nation to play the national anthem; another does not consider whether he has the power to mandate that every student in Tamil Nadu must study the Tirukkural; a third takes over the entire process of preparing a National Register of Citizens (NRC), with nary a thought about whether the Constitution ever contemplated a task such as this to fall within the judicial domain. But post-2014, the SC presented a meeker version when it came to dealing with cases which could prick the political interests”- reports the WIRE dated 12/APR/2019

The Supreme Court has come to a level where judges are afraid of the Bar, Supreme Court Bar Association president Dushyant Dave wrote in a letter to the Chief Justice of India on Wednesday, after he was denied a chance to speak at the farewell to Justice Arun Mishra.

The protection of judicial independence is pivotal for a Democracy . Judicial Independence is the gate of Individual Independence. A Nation is not independent if there is any chain on Judicial Independence , be in direct , indirect or remote

Judicial independence is a public trust . The community must have confidence in its system of justice and be comfortable in the knowledge that fairness, openness, and immunity from improper influence are characteristics of its judiciary. In this way, the community will believe that all citizens can expect the same treatment according to the Rule of and respect for the administration of justice will be maintained and enhanced. Representation of the goddess Justicia with her eyes blindfolded, holding the scales, does not mean that justice is blind. Rather, the symbolism is to remind us that the Rule of Law is intended to treat all people equally, no matter what their circumstances. Also, judges often wear robes when performing certain adjudicative functions. These gowns are symbolic of the court’s authority to act as guardians of the Constitution and protectors of the Rule of Law. The placement of judges on a raised dais within the courtroom is also designed to signify the authority and impartiality of the judiciary and to recognize the importance and the solemnity of the proceedings Judicial independence requires that a judge adjudicate without fear or favour, even in the face of a contrary view widely held by others, whether judicial colleagues, government, the public, the media, or interest groups. It is the community’s responsibility to vigorously resist any steps or initiatives deemed to be an encroachment on judicial independence that would harm rather than protect the public interest. Judicial independence means both the independence of an individual judge from outside influences or pressure, as well as an institutional independence for the entire judiciary, as a body, from any influence from external pressures, direct or indirect, and more especially from the other branches of the government, and so its high time to remember that — Judges are not fearful saints. They have to be fearless preachers so as to preserve the independence of the judiciary which is absolutely necessary for survival of democracy,” the bench, also comprising Justice Navin Sinha, , Supreme Court of India

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