Judicial activism and Rule of Law

Today, one of the complex causes that affect the common man is the delivery system of Justice, which if delayed is tantamount to justice denied. The judicial reforms are overdue. The one crucial aspect of judicial inter-dependence is the continuity in thought, expression, expeditious disposal of Cases. The Supreme Court, in the Keshavanatha Bharati case, reversed the Special bench’s ruling that Chapter III or the fundamental rights are paramount, and hence, Parliament under Article 368 of the Constitution could not alter them. In the Bharati case, the Court propounded the ‘basic structure doctrine’ and ruled that any article of the Constitution which did not affect the basic structure could be amended by the Parliament, holding that there were no” implied limitations of the amending power by Parliament”. Was the fundamental Rights, inter alia, not a basic right extended to the citizen. While observing that ‘judicial review’ formed a crucial edifice of the ‘basic structure’ , the learned Judges did not look beyond time, to consider what would happen in posterity, if the state unnecessarily encroaches on the Citizen’s right? Will not habeas corpus right devalued, if fundamental rights are curtailed? Writ of Quo Warranto? Writ of mandamus? If Parliament has overwhelming 2/3rd majority, can’t there not be a arbitrary approach which results in removal of the law on Rights guaranteed , as the Parliament is empowered to change or cause amendment to any Article or clause in the Constitution. When the government subverted the judicial review by giving blanket cover to certain amendments placed in 9th Schedule, Court clearly made it known that 9th Schedule came under Judicial Review. Emergency in 1976 nullified Keshavanda Bharati judgment by inserting sub para (4) to Art 386 limiting the Court’s interference and sub clause 5 of 386 placing the sovereignty of Parliament paramount. However, a bench headed by Justice Y V Chandrachud in Minerva Mills case (1980) held clause (4) and (5) of Article 386 as invalid. The Janata Government under Morarji Desai passed the 44th amendment, deleting the Right to Property from Art 19(l)(f) and 31 of Part III and was made into Artcile 300-C. It excluded remedy under Art 32 of the Indian Constitution, as Right to Property ceased to be a Fundamental Right. The High Court of Madras stayed the execution of 3 convicts of late Rajiv Gandhi citing undue delay at the hands of the president for deciding their ‘mercy petitions’. The Right of clemency was vested in the President. It was subjective. However, the SC held that President could not exercise that power independently as he was always bound by the advice of the Council of Ministers.Power of granting clemency was a power vested with the President, to be used by him in discretion. The Council of Ministers come when Policy decisions are involved. After SC has confirmed a death sentence, on the basis of theory of seperation of Powers, President was the head of the three reservoirs. Hence his power was paramount. When politicians deal with this provision, discretion is not exercised, she is taking a political decision. Supreme Court need to revisit this Judgement. Various Chief justices of the Supreme Court had stated that the SC will sink under the weight of the cases pending disposal. There is a case which is more than 400 years old, stayed by the Supreme Court (Ayodhya Case). Bhopal Gas tragedy case? There was another case which was adjudicated after 40 years. The longevity of cases range from 20 years to one year. Would the action or adjudication go irrelevant because of time consumption beyond one’s reach, time and capability? Justice V R Krishna Iyer in Indira gandhi Vs Raj Narain case, reserved the judgement after hearing both the parties. Nani Palkhiwala told him that if he did not give stay immediately, there would be vaccum as the stay of the judgement of Allahabad HC expired the previous day. Justice Krishna Iyer made a revelation that if an appeal is preferred, and if stay is granted, it has restrospective effect. From the date of hearing of the case, the order becomes valid. By the same token, President's rejection of Mercy petition takes effect retrospectively but since it is execution, it is a prospective exercise that has to be under taken. The time gap is to be ignored because you cannot set a limit for clemency. It is a discretion. The most important abuse of litigation is the appeal to Supreme Court preferred by the Insurance Companies against Motor Accident Tribunal judgments to deprive paying compensation under the sly. They are held up for years in the SC. Justice V R Krishna Iyer introduced what is called the ‘Public Interest Litigation’ in what was known as Ratlam Municipality case where Varachand & Others was the petitioners. Traditional rules of ‘locus standi’ were the hall mark of a right to file a writ petition. Relaxing procedural Rules, if the Society as a whole rather than a specific individual feels aggrieved, Social action litigation or Public interest litigation could be resorted to. ‘Epistolary jurisdiction’ of United States was the precedence bed rock on which Justice Krishna Iyer based his new theory, which was known as ‘Judicial activism’. A step taken in a new direction is fraught with the danger of being a likely step in the wrong direction. Pressure on the Courts is already overloaded. The pending cases are mounting. Unfettered jurisdiction to review anything and everything is not good in a flourishing democracy like ours which has theory of separation of Powers. Under Art 32 and Art 136, a citizen can approach the Supreme Court including filing PIL if it involves fundamental rights. High Courts have wider powers that under Art 226 and 227, any question of law can be raised under a writ petition. Court and the Judges need to make critical subjective and objective assessment of their role as torch bearers of democracy. “Reading down” action of a judge which depend upon outlook or philosophy of a Judge can change a cause and its remedy: if certain provision of Law construed in one way, consistent with the Constitution, and another renders the construction unconstitutional, the judge rules in favour of the first, which is constitutional is based on Judge’s reading of the vocabulary. Accountability is an essential part of the Rule of Law. It has to accept checks and balances and does not have unfettered rights. Self restraint is a very important rule than an exception.