Author: Soli J. Sorabjee
Publication: Indian Express
Date: April 14, 2007
URL: http://www.indianexpress.com/story/28323.html
Introduction: Except in the case of some PILs,
judicial interventions cannot be termed overreach
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
