"The troll armies inspired by political parties and organizations target the judges and their families," said C. S. Vaidyanathan, senior advocate, Supreme Court of India and former Additional Solicitor General of India.
It is time for ‘justified’ celebration by the country, courtesy some former justices of the apex court. Half a century ago, almost to the day, the Supreme Court of India delivered a judgment that was arguably one of the most celebrated contributions to modern democratic jurisprudence not only in India but perhaps the entire democratic world ~ Kesavananda Bharati vs Union of India.
It was one of the finest hours of the apex court. A ‘Guardian Angel’ of the Constitution was conceptualized, spelt out as its “Basic Structure.” The doctrine engraved in stone the basic freedoms that the common citizen of the country continues to enjoy under the Constitution.
The Fundamental Rights that were enshrined in independent India’s Constitution are firmly in place, even expanded since.
A toxic proposition had been espoused by the then ruling political majority that Parliament is “sovereign” in its legislative functioning ~ it was junked albeit by a majority in the Constitution Bench formed especially for the purpose, an opinion since consecrated by several subsequent judgments during the last half century.
Little wonder that in global fora today, India is increasingly held as a shining example of a magnificently robust democracy.
The country now rightfully aspires to be a member of the most exclusive club in the world ~ the Security Council.
Of late, however, there have been some dissenting voices on the said judgment that may just dilute the spirit of these celebrations.
One of the prominent voices is that of the Union Law Minister. Fortunately, independent India has a tradition of appointing only such elected leaders as are well-versed in law as Law Ministers, irrespective of the fact that no particular qualifications may be required for other positions in the Council of Ministers.
And the present Law Minister is no exception. He is a legal scholar in his own right. But in this case, he may not have been correctly advised. Half a century is not a long time in the history of a modern nation.
But it is a long time in the history of a modern democracy that prides itself to be under the rule of law.
Though independent India’s Constitution was promulgated almost three quarters of a century ago ~ one of the finest in the modern world ~ it was rewritten in golden letters with a judgment that boldly underlined the basic principles of a secular democracy ~ the rule of law, an independent judiciary, separation of powers, freedom of speech and worship, and an independent civil service.
The original Constitution was drafted soon after independence by the Constituent Assembly, comprising a cross-section of enlightened people’s representatives.
The rewriting was done by a majority of a Full Bench of the Supreme Court of thirteen judges, almost quarter of a century later.
The then ruling party viewed it as a grave provocation in the form of reiteration of an earlier judgment of the Court (in 1967) that had ruled the Fundamental Rights could not be curtailed or amended by the Legislature (Golak Nath).
The ruling party misconstrued it is an attack on the “sovereign” power of the Parliament to enact any law it wished, as “people’s representatives”.
The ruling majority party argued that as all power was exercised in the name of “We, the people”, Parliament had the exclusive right to pass any Constitutional amendment in the public interest ~ the judiciary must acknowledge the “sovereign will” of the people’s representatives.
The latter are the elected leaders of public opinion, chosen to represent their interest and carry forward the same by enabling the Government to implement any law as passed by the Parliament.
The judiciary must respect the people’s “will”. The ruling political Executive thereby had sown the seeds of open confrontation with the Judiciary, by taking such an untenable and undemocratic stand.
Fortunately for the country and the future of democracy, the Supreme Court did not succumb to the Executive. The largest Bench of the Court sat for the longest time ~ six months ~ and delivered arguably the most celebrated judgment in the legislative history of independent India.
It conceded to the Parliament but only partly the power to suitably amend the Constitution to carry forward its intent but held it could not tinker with or alter the “basic structure” of the same.
Most crucially, it could not curtail the independent power of the Judiciary to review any legislation to ensure that it conforms to the ‘basic structure’. The Court outlined in broad terms the ‘basic structure’ of the Constitution which has admirably stood the test of time for half a century.
One of the prime postulates of the ‘basic structure’ is that the Constitution is supreme, not the Legislature, not the Executive, not even the Judiciary. It had been strenuously argued on behalf of the ruling political Executive that the elected legislature is “sovereign” since our democracy is based on the Westminster model.
The argument was specious even to begin with. Undeniably, the British Parliament is sovereign as the country has no written Constitution. But it is only in theory.
Leading political scientists even in the UK, like Harold Laski in the last century, categorically junked this proposition of “sovereign power” of the British Parliament. Laski fully endorsed the stand taken earlier by the then Lord Chancellor of UK to argue that assuming the British Parliament in the exercise of its “sovereign power” were to promulgate that its tenure be extended indefinitely, in such contingency the British courts would be fully ‘justified’ in exercising their powers in a similarly extraordinary manner and annul such a legislation.
It thereby negated the proposition, even for the Mother of all Parliaments that the UK Parliament is not fully sovereign in the exercise of its legislative functions.
Not only that, the hypothesis that the legislature is supreme is not valid in any modern democracy, not even in the birthplace of modern Constitutional democracy ~ the USA. In America, some members of the ruling political class had argued that they were the custodians of the “will” of the people, as elected representatives.
Hence, they were the sole judges, so to say, of people’s will, not the Judiciary which was an unelected body.
The argument was trashed two centuries ago by the then Chief Justice of the US Supreme Court, John Marshal who ruled categorically that the Constitution is supreme, not the Legislature.
And the judiciary (through its exclusive power of interpretation) can alone “say what the Constitution is”. It is the settled, unchallenged law in the US ever since, that the power of judicial review cannot be questioned by the elected legislature.
(The writer is IAS officer)