Separation of powers under the Indian Constitution has built-in checks and balances. Such a measure is a necessity so as to ensure well-debated, purposively-guided and effectively-facilitating and informed open governance.
But the journey so far has had its option down. The case of Golaknath prohibited any law, including amendment to the Constitution, to violate the fundamental rights as in Part-III of the Constitution. This truncated powers of the Parliament to enact an elected body exercising sovereign power. This necessitated the amendment of the Constitution mooted by the Nath Pai Committee. This further led to the judgment in the case of Kesavananda Bharati. The Supreme Court evolved the doctrine of the “basic structure” of the Constitution which could not be subjected to amendment by the Parliament. In a set of judgments, almost forming a book, different judges propounded their different theories. Subsequent books by the counsel appearing in the matter have disclosed the process that led to the judgment. An unsuccessful attempt was made by the Supreme Court to revisit the dicta laid down in the case of Kesavananda Bharati. There was no “case” before the Supreme Court. It goes to the credit of eminent leaders of the Bar like Palkhivala for the Bench to give up the adventure. The cases of Minerva Mill and others uphold the principles enunciated in the Kesavananda Bharati case.
The 42nd Amendment to the Constitution had very many pernicious elements. Many of them came to be challenged. Article 21 was held to be the sole repository of personal life and liberty and, once suspended, the affected person was left without remedy. This issue came to be challenged in the case of ADM, Jabalpur, when the Supreme Court held that there was no remedy left for such an affected person. The arguments were advanced that “right to self-defence” and animal right was also not available. At that time, the apex judiciary harmed its own duty to protect the “basic structure”. This harm to the Constitutional edifice and right and liberty came to be protected by an amendment to the Constitution.
There are other instances where the amendment to the Constitution regarding the Board reviewing the denial of liberty, though passed by the Parliament was not notified by the Executive. This frustrated the protective measures through a better constituted Board. In the case of AK Roy, the apex court styled it as conditional legislation and contrary to general principles and put it beyond the scope of the judicial review. The result is that these amendments are still dead letters. Similarly, Section 30 of the Advocates’ Act is yet to be notified. Such areas were held to be under “unfettered” discretion of the Executive. Similarly, several amendments to the Industrial Disputes Act are yet to be notified and, therefore, are as good as dead letters. Will of the legislature has thus been frustrated by the Executive inaction, and the Constitutional courts have been hesitant to exercise their power of independent judicial review, though held to be part of the “basic structure”. This was contrary to the consistent view that judicial review is a part of the “basic structure”.
The recent case of Judicial Appointment Commission is again an instance of overstretching the expression “independence of judiciary” to literally do away with checks and balances. The object of separation of powers was not to make them parallel streams. The object of the Constitution makers was to read into the separation of powers for suitable checks and balances.
The present debate before the Supreme Court has thrown light on several instances of immunisation of exercise of power from its scrutiny. It is a matter of record that the Supreme Court itself halted the swearing in of a High Court judge and quashed the appointment. This was possible through judicial review as the person concerned did not have the adequate qualification.
But the present trend of a confrontation between the legislature/Executive and the Judiciary in the matter of independence of judiciary itself has not been a pleasant one. Parliamentary will has been subjected to judicial review and has been struck down principally on the grounds of independence of judiciary. The legislature, Executive and Judiciary are also a part of the basic structure. Consequently, the harmony amongst them is the need of the hour. No doubt, the Constitutional courts have rightly interfered in cases in the past and public opinion has accepted the supremacy of judiciary for interpretation of the Constitution and the laws. Purposive interpretation has been inherited by us in preference to literal interpretation. In that context, the Constituent Assembly debates or parliamentary debates or legislative debates have been pressed into service. Ironing out the creases, as lord Denning says, cannot disturb the main fabric. Reading down cannot tantamount to rewriting. A time has come, therefore, to revisit the Constitution of India. It is worth reading Justice Bl Hansaria’s book Does India need a new ConstitutionIJ
The future of the youth power is known to be vitally affected by whatever the legislature or the judiciary lay down as the law of the land. The debates and discourses should have greater involvement of the future generation of India. It is they who must debate along with their elders. And this certainly concerns us all!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)