The power to amend does not include the power to destroy the Constitution’s basic features. Thirteen judges of the SC held this in the Kesavananda Bharati case.
The recent debate stirred by unprovoked statements of the law minister on the functioning of the higher judiciary has exposed his unfamiliarity with the issues raised. Let me first deal with some recently articulated misconceptions about Parliamentary sovereignty. No institution in India can claim absolute sovereignty. Parliament is sovereign to the extent that it makes laws through procedures that are clearly demarcated in the Constitution and under the rules of business framed by Parliament and the Legislatures of States. Parliament alone, subject to procedural requirements provided for in the Constitution and the law declared by the Supreme Court, can amend the Constitution.
But the power to amend does not include the power to destroy the basic features of the Constitution. Thirteen judges of the Supreme Court held this in the Kesavananda Bharati case. The independence of the judiciary is one of the basic features of the Constitution.
If the independence of our judiciary is compromised, our polity will no longer be democratic. We will be regarded as a dictatorship like any other non-democratic nation of the world. I doubt very much if 1.4 billion people of the country will ever accept that situation. The country is too large and too diverse for people to accept the proposition that Parliament is sovereign and can do what it likes. That concept of Parliamentary sovereignty is, to my mind, a myth. What is sovereign is our Constitution with the underlying leitmotif that the rule of law prevails.
That is why the declaration of the law by the Supreme Court on any subject matter that comes before it is binding on all institutions including Parliament. Any attempt to legislate with the intent of overturning a binding ruling is itself regarded by the Supreme Court as unconstitutional. The supremacy of the rule of law is the guiding factor that helps us preserve the ethos of our Constitution.
The debate initiated by the law minister is flawed in many respects. First, no minister of the government should make a public comment on how the court should function, just as no judge of the Supreme Court should comment on how Parliament or a legislative assembly must handle its affairs within the House. The manner in which the court functions is internal to the court just as the manner in which Parliament functions is internal to the procedures, as adopted by it.
No judge of the Supreme Court can advise on how the business of Parliament and legislative assemblies should be conducted. The court can only opine on the legality of any process which raises issues that can, if at all, be decided by the court.
Second relates to the issue raised in relation to court vacations. This year, Parliament functioned for 57 days. Sittings of the Supreme Court are held for 260 days in a year, apart from vacation courts when benches are constituted to hear urgent matters which cannot await the regular functioning of the court. Should, for example, the Supreme Court advise Parliament to work a little more and extend its sittings from 57 days to 260 days? I believe that will be inappropriate. The Constitution has delineated the contours of each institution and has given complete freedom to them to conduct their affairs subject, of course, to the rule of law.
Besides, a judge of a court sits at 10.30 in the morning and works till 4.00 pm with a short break for lunch. The work of a judge does not end there. The judge has to read files at home for the next day, and in the Supreme Court, the average number of files on a given miscellaneous day is 60 to 70. That requires the judge to sit for another three to four hours reading the assigned briefs. In between, court orders on matters heard during the day are to be finalised along with drafting judgments awaiting delivery. Judges also discharge administrative functions.
So, it is a seven-day-a-week job. Few public servants follow such a gruelling routine. That apart, the vacations the minister talked about, are spent drafting judgments yet to be delivered.
The statement of the minister that the Supreme Court should not be wasting time on Public Interest Litigations (PILs) and applications for bail displays a complete lack of appreciation on the Constitutional commitment of the court to the cause of personal liberty and to act when public-spirited citizens bring issues affecting public interest before it.
When the executive falters, courts are obliged to protect the public interest, a practice institutionalised by the Supreme Court since the 1970s. The minister, perhaps, is also not aware of the fact that many of these PILs are sponsored by individuals who are aligned to the ideology of the party to which he belongs, for political dividends.
As far as bail applications are concerned, I am sure the government would not like bail applications to be heard in the Supreme Court. Of late, we have witnessed instances of the government’s prosecuting agencies targeting and taking into custody political opponents, students, journalists, and those belonging to the minority communities for reasons which need not be stated here.
The minister’s criticism of the collegium system is to some extent justified. It needs a revamp to instill confidence and bring about transparency in its deliberations. But the government’s concern is targeted more towards the fact that it is not the final arbiter in matters of appointment of judges to the higher judiciary. Having captured one institution after another, it now seeks to capture the last citadel of freedom. The government wants to appoint persons who embrace the ideological moorings of the ruling party.
The problem is no matter what institutional mechanism is put in place, what really matters is the quality of persons appointed. If they fail us, all is lost. The onslaught on their independence has begun in earnest.
Senior lawyer and member of Rajya Sabha