GOVERNMENT’S FOLLY

The government is committing a mistake by permitting the judiciary to take lead in the matter of social reforms. This may cost the government dearly. The article below explains how this has happened in the past

Short term measures, without considering the long term perspective, are often successful but in the longer run cost heavily. This is also true so far as relationship between different organs of the State are concerned. 

Today, it seems obvious that a law or executive action, contrary to Constitution is void and the judiciary is final arbiter in the matter. But it was not so earlier. Historically, Marbury Vs Madison 5 US 137 = 2 LEd 60 was the first case that held that the Constitution is the supreme law; laws contrary to it are illegal; and the judiciary is the final arbiter. But this was done in order to uphold the action of the government—a result that the government wanted though not the proposition of the law established by the case. 

John Adams was the president of US. He lost the election for the next term to Thomas Jefferson. After losing the election but before his term expired, he appointed several men including Marbury, who was appointed justice of peace. However, Adams was relieved from office, before commission could be handed to Marbury.  

After Jefferson's took over as US President, inauguration, he instructed Madison, his secretary of state, not to delivered the commission to Marbury. Thereafter, Marbury filed a petition before the US Supreme Court under the Judiciary Act of 1789 for writ of mandamus to deliver the commission. The Act conferred such original jurisdiction on the court. 

Incidentally, John Marshall had signed the commission as the secretary of the State and later the case came before the US Supreme Court, where he was the Chief Justice. By today’s standards, he should recused himself from the case but those times were different.

The US Supreme Court held that Marbury was rightly appointed but refused to grant him relief on the ground that the relevant section of the Judiciary Act was unconstitutional as it purported to enlarge the original jurisdiction of the Supreme Court beyond that was permitted by the Constitution. The important point is that the final decision was in favour of the government that it wanted but the court reserved a new right to itself—the jurisdiction to see if the laws are valid or not and became final arbiter on the question. The case has been followed by the courts in all other countries.

In the Shankari Prasad (AIR 151 SC 458) and Sajjan Singh case (AIR 1965 SC 845), our Supreme Court upheld the power of the Parliament to amend any part of the Constitution. However, in the Golakhnath case (AIR 1967 SC 143), it was held to be subject to Article 13 of the Constitution. Thus, the fundamental right could not be amended.

The Golakhnath case was overruled in the Keshvanand Bharti case (AIR 1973 SC 1461) but by narrow majority of 7-6, it was held that the basic features of the Constitution could not be amended. There were not many takers of the theory—no where in the world, there is such limitation but one ill advised amendment to overcome an immediate problem changed this perception.

Indira Gandhi’s election was set aside by the Allahabad High Court in June 1975. In the appeal, the Supreme Court did not grant her complete stay but clarified that she could—without any right to vote—continue as the prime minister and participate in the proceeding (Indira Gandhi Vs Raj Narain AIR 1975 SC 1590 = 1975 (2) SCC 159.  

Mrs. Gandhi imposed internal emergency on 26th June, 1975 and Article 329A was inserted by 39th Constitutional amendment Act. In substance, Article 329A(4) declared the Allahabad High Court judgement to be void and pending appeal was to be decided accordingly. The appeal of Mrs. Gandhi was allowed on 7th November 1975 (Indira Gandhi Vs Raj Narain AIR 1975 SC 2299 = 1975 Supp SCC 1) but applying basic structure theory, Article 329A(4) was held to be void. 

The aforesaid amendment was so obnoxious that it convinced most of the people that our nascent democracy requires limitation on the amending power. Even HM Seervai, who was the strongest critic of the basic structure theory and had argued the Keshavanad Bharti case on behalf of the State, became its supporter.

The Union of India had taken steps to secure reconsideration of the Keshvanand Bharti case. On an oral request of the Attorney General and Advocate General of Tamil Nadu (who later denied making such request) on 1st September, 1975, a bunch of writ petitions were ordered to be listed on 10th November before a bench 13 judges to consider two questions namely whether the basic structure theory was rightly propounded in the Keshvanad Bharti case; and if the Bank nationalisation case was correctly decided. This was done on 10th October 1975, even before the judgement in the Mrs. Gandhi case was pronounced. 

The nominated bench heard the objections of Nani Palkhiwala for two days against formation of the bench (for written propositions see ‘We the People’ by NA Palkhivala Pg 183). His main objection was that only two days ago the court had applied basic structure theory in the case of Mrs. Gandhi without any objection being raised against it and there was no justification to review it.

On 12th November, the Chief Justice dissolved the bench. It is true that Palkhivala was par excellence in his arguments. I remember SN Kackkar, the then Advocate General of UP and who was present during arguments, narrating the entire proceeding in the Allahabad High Court Bar Association. He said that even in his dreams, he could not imagine any lawyer reaching such heights as reached by Palkhivala in the case. Justice HR Khanna in his autobiography ‘Neither Roses nor Thorns’ writes, 

‘My feeling and that of some of my colleagues was that height of eloquence to which Palkhivala rose on that day had seldom been equalled and never surpassed in the history of the Supreme Court.’

But despite eloquence of Palkhivala, had there been no ill advised Article 329A, the result might have been different: the amendment had left impression in the mind of everyone that power of amendment can be abused and our democracy needs such limitation. The proposition has never been challenged since then. It has gone from strength to strength. And now it has gone to another extreme.

On the basis of basic structure theory, the Supreme Court for unconvincing reasons has held constitutional amendment constituting National Judicial Appointment Commission to be illegal and reserved the power of appointment of the judges in their own hands—a power unheard of and not exercised anywhere in the world. 

The government of the day is committing the same mistake—of course in a different way without realising the pitfalls.  

Sir Henry Maine in Ancient Law (Pg 20) wrote, 

‘Social necessities and social opinion are always more or less in advance of law. … Law is stable, societies … are progressive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed’. 

It is the job of the legislature—and not of the judiciary—to narrow the gap. The judiciary is required to see if the means adopted by the legislature are constitutional or not. This is where the government is failing and recent times are full of such examples. 

Euthanasia, reforming personal laws, abolition of triple talak and Nikah Halala, bringing uniform civil code, LGBT rights, decriminalising adultery and consensual homosexuality among the adults, women empowerment, throwing open temples to the women are some such examples. These social reforms lie in the sphere of the legislature. It should bring necessary amendments. It is failing in its duty and is encouraging the judiciary to do so. Judiciary is too happy to oblige. The end result is right but it should have been achieved by appropriate legislation rather through judicial pronouncements.

Perhaps, the government wishes to safeguard its vote bank: on the one hand it wishes to say, we did not do it and on the other hand reforms are happening. But the government is losing ground and handing over its basic function to the judiciary. Even if this factor is ignored, there is another point.

In the formative years, as far back as 1872, Justice Holmes said, 

‘One must remember that it is not the will of the sovereign that makes the ... law, even when that is its source but what… the judges by whom it is enforced, say is his will. The judges have other motives for decision, outside their own arbitrary will, besides the commands of their sovereign. (Book Notices: The Law Magazine and Review 6 American Law Review 723)’

The day is not far, when we will not be governed by the government elected by the people but by the judges who are appointed by the judges themselves and who may have, as Justice Holmes says, other motives for their decisions.

#YatindraSingh, Yatindra Singh, Yatindra Singh,

Marbury Vs Madison, Triple Talaq, Euthanasia, Nikah halala, Uniform Civil Code, LGBT,