Stepping In on Our Behalf

Source :  Hindustan Times  January 14, 2007

Between Us | Pankaj Vohra

The Supreme Court has made it abundantly clear that no law was sacrosanct, which violated the fundamental rights or the structure of the Constitution.

The Supreme Court has clarified that it has the powers to review any kind of legislation, whether in the Ninth Schedule or otherwise. In fact, through series of judgments, some bordering on judicial statesmanship as recalled by a top legal luminary, the apex court has restated its powers, despite a perception that the judiciary was trying to poach on the territory of the legislature and that of the executive.

For instance, there is nothing new in the historic judgment made by the nine-member bench on the Ninth Schedule legislations. The latest judgment has sharper clarity and aims to drive home the point that the Ninth Schedule of the Constitution should be treated as a bank locker where legislations are kept. However, as and when occasion demands, the Supreme Court has the right to get into this locker and examine the legislations and test them on the touchstone of its earlier judgments, like the Kesavanand Bharti case.

This was a message to the legislatures that they should adopt laws within the framework of the Constitution and infringe upon neither the fundamental rights nor the basic structure of the country's ultimate law book. Many of the laws had been enacted and parked in the Ninth Schedule by the legislature which knew fully well that the laws would not have withstood the scrutiny of judicial review. The apex court has reminded the legislature and executive their constitutional responsibilities.

The developments come in the wake of a widely held belief that if any legislation stems from an abuse of powers, then the judiciary or the media can intervene to make things right. It is very obvious that the Supreme Court judgments have not had any negative reaction. It is, in many ways, a tribute to the judiciary that even while appearing to be proactive, it has maintained balance in its approach.

If the balance has been lacking anywhere, it is within our political class. Politicians have failed to comprehend the significance of the Constitution in their practice of competitive politics. In fact, it is paramount for politicians as well as political journalists to fully understand the implications, for the ordinary citizen, of any legislation.

Vote-bank politics directs legislation. This is true of reservations in jobs and quotas. If an idea is brought up, no politician or his party offers a forthright comment, if the issue involves castes. In the case of religion, only parties like the BJP and Shiv Sena express their opinions, also with an eye on votes. But court intervention gives politicians an escape route by painting the judiciary as the villain. But the fact remains that in many such instances, it is the judiciary which is the saviour. This holds good this time round too.

Anyone following the historic judgments of the apex court, whether in the Golaknath case, the RC Cooper case, the Kesavanand Bharti case, the Waman Rao case and the Majestic Mills case, among others, will appreciate that the court has been consistent in its views. Even though the Golaknath case was seemingly overturned through a 7:6 judgment by the 13-member Supreme Court bench, the definition of the basic structure of the Constitution was kept vague. The vagueness is only matched by the vagueness the Indian Parliament has maintained while not clearly defining the privileges of MPs.

More and more people are entering public life without being fully armed to handle competitive politics. For instance, there are MPs and MLAs who are unaware of the history and ideology of their respective parties. They are equally at sea regarding rules and procedures of Parliament or legislature and thus their interest is limited.

This lack often allows the executive to have free play since it is the bureaucracy which largely calls the shots while parroting, "Yes, Minister". An alert legislature can always keep the executive on its toes. But what finally ends up happening is that laws go through Parliament and legislatures without much challenge. Thus, the onus of protecting the interests of the people falls on the judiciary and the media. But the media too have shown ignorance and failed to acquaint themselves with laws and procedures.

Even basic things like the difference between framing of charges and filing a chargesheet is not known to most. Young journalists report on Parliament proceedings without ever having gone to the Parliament Street police station.

The main thing is that there are no short-cuts to the learning experience if we all have to understand and analyse situations that are consequences of a given law enactment. There are even laws which have been enacted but have not been notified by the government. The Delhi Rent Act is one such. The judiciary is, therefore, often left with no option but to intervene when the remaining State organs fail to meet expectations.

In coalition politics, especially after 1989, successive governments have failed to act in a decisive manner on many an occasion. The present government, too, has stayed many decisions for reasons best known to those at the helm of affairs. The appointment of governors is one such decision. Finally, it will serve nobody’s interest if the judiciary is put in the firing line. It is the inability of others to deliver fairly which has made the judiciary's position one of envy.

The Supreme Court has done the right thing and needs to be complimented for saving the system from collapsing. Between us.

Email Pankaj Vohra: pankajvohra@hindustantimes.com