Maintain the fine balance
V. Eshwar Anand

The Supreme Court versus the Constitution — A Challenge to Federalism
Pran Chopra (ed). Sage Publications, New Delhi.
Pages 287. Rs 360.

The Indian Constitution is one of the finest in the world. It is neither highly flexible like its English counterpart nor is highly rigid like the US Constitution. It presents a curious blending of the two.

The Constitution provides for separation of powers between the three organs of the state — the legislature, the executive and the judiciary. Their powers have been clearly demarcated. It is the spirit of the Constitution that delineates the harmonious relationship among the three organs. The fine but delicate balance between the three pillars of the Constitution needs to be maintained always for the success of the federal polity.

Parliament occupies a pre-eminent position in the constitutional and political set-up as it is the chief repository of people’s will. Nonetheless, like the executive and the judiciary, it has to function within the parameters of the Constitution. All laws, whether Union, state or delegated, are subject to the doctrine of ultra vires and judicial review. The judiciary has to examine whether any legislation has transgressed the provisions of the Constitution. Parliament cannot be a judge in its own cause when the validity of its law is questioned. This indeed is the quintessence of judicial review, an essential feature of the Constitution.

In adjudicating the constitutional validity of a legislative action, the judiciary gives due deference to legislative wisdom. It has thus evolved the doctrine of presumption of constitutionality. This doctrine envisages that the court cannot strike down a law or amendment by the legislature in a casual manner. The court will not hold a legislative action to be ultra vires unless the invalidity is clear beyond all doubts, for there is always a presumption in favour of its validity. Clearly, if a statute is violative of a fundamental right or the basic structure of the Constitution, the court, as a judicial sentinel, would be failing in its duty if it did not strike it down as null and void.

Never has the confrontation between Parliament and the judiciary been as serious as in recent times. Whether it is Parliament’s power of expelling tainted members exposed in the sting operations, the Supreme Court ruling dealing with minority educational institutions or Jharkhand, judicial intervention has always triggered off avoidable confrontation with the legislature.

The confrontation (or the impasse) is mainly because of a lack of critical appreciation of each other’s role and limits. How can the presiding officers and MPs claim supremacy and sovereignty for Parliament? As both Parliament and the judiciary are creatures of the Constitution, the Constitution is supreme and sovereign and not the other way round.

Pran Chopra feels that the basic structure theory is a "vague and undefined concept". Herein lies the judiciary’s "limitless power". He says that this theory propounded by the Supreme Court in the Keshavananda Bharati case has "deflected the balance of power decisively in favour of the judiciary at the cost of Parliament". (p. 36).

Noted jurist Fali S. Nariman agrees that the criticism that, having propounded the basic structure theory, the guardians of the Constitution have become guardians over the Constitution has "considerable validity". However, he argues that it was "an auxilliary precaution taken against the possible tide of majoritarianism". (p.34).

Judicial review is fundamental to rule of law. However, while reviewing the constitutionality of the law, the court should not consider itself as a "super legislature" and sit in judgement on the wisdom of the policies adopted by the legislature. (N.R. Madhava Menon, p.66)

All the three wings of the Constitution work in close cooperation with each other, without overstepping their respective limits. The Laxman Rekha will have to be respected. Ultimately, every act of the three wings will have to be tested on the touchstone of the Constitution and public weal for its validity and legitimacy. (Subhash C. Kashyap, p.100)

Whether Parliament agrees or not, the basic structure is what the Supreme Court says it is. Consequently, Parliament cannot overcome a decision of the Supreme Court declaring a constitutional amendment ultra vires the basic structure. (P.P. Rao, p.76). The Supreme Court’s powers to examine the constitutional validity of the laws passed by the legislature and oversee the functioning of the executive cannot be diluted. This is bound to give rise to two views. (Justice A.M. Ahmadi, p.149).

As the Constitution is a living organism, there is need to examine its successes and failures so that necessary course corrections can be introduced. Admittedly, the courts have used their powers to facilitate a modus vivendi rather than articulate clear constitutional principles. Judicial reforms are a must to strengthen the judiciary. (Pratap Bhanu Mehta, p.173).

Pran Chopra’s initiative to generate a healthy debate on this crucial issue is highly commendable. It will greatly help develop a better understanding among various sections on the Constitution and the dynamics of the federal polity. The essays by jurists, constitutional experts, journalists and academics will, certainly, help strengthen the institutions in focus and contribute to knowledge.