Declaring a law void is not overreach by the judiciary

TILL the other day, the world looked up to democratic America's systems with awe owing to their sincere application, wherein the legislative, executive and judicial branches functioned, each with specified duties on which neither of the other encroached. The system followed the 17th century-origin doctrine of "checks and balances" which linked to "separation of powers", where the executive, legislature and judiciary worked with precision. "Separation of powers", adopted by the 1787 Convention, was "not to promote efficiency but to preclude the exercise of arbitrary power to save the people from autocracy."

Today, however, it has been rudely jolted by the US regime's "real-time" justice, leading to a possible reign of gross injustice. President Trump and his band of 'yes-men' have set the system on fire by their assault on the judiciary. After arresting a lady judge from the courtroom of subordinate judiciary, Trump-appointed Attorney General Pam Bondi called her "deranged" and warned the judicial system: "We don't care who you are…we'll come after you, find you and prosecute you."

However, despite gross misbehaviour of the executive, Trump-appointed jurist Terry Doughty rebuked the state administration for deporting a 2-year-old US citizen and her family to Honduras. The far-right Doughty set a May hearing "in the interest of dispelling our suspicion that Government just deported US citizen with no meaningful process."

Retired Massachusetts Supreme Court justice Geraldine Hines too warned: "Courts have role in our constitutional system…judges are free to make decisions without intimidation, without interference from executive branch or legislature."

Just as in the US, a brutal criticism of the apex court has been launched in India, too. One doesn't wish to repeat the unethical and accusing words hurled at the judiciary, including the Supreme Court, by the second highest constitutional post-holding gentleman and ruling party MP. Instead, one re-iterates what a magnificent Constitution our forefathers have created, making this country such an open, liberal and all-inclusive society and polity of 1.4 billion heads.

The Preamble shows the way of the sovereign India. "We the people of India…….in our constituent assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this Constitution." These timeless words stand testimony to the unparalleled and glorious achievement and wisdom of the creative mind of members of the "Sovereign Democratic Republic" in 1950.

The beauty of the Indian Constitution is that unlike the British parliament, which is the creator of the (unwritten) constitution thereof, the people of India created the Constitution and the parliament is the creation of the constitution. Thus, people stand above both the Constitution and parliament, being the creator. Hence, no law passed by parliament can be accepted and will be void if it is not in consonance with the basic features of the Constitution. And, to look into the legality of such a law passed by parliament is the sole privilege and prerogative of the SC.

Hence, if the SC declares a law void or makes an amendment, it doesn't make it a super parliament and the judiciary should not be castigated for doing what it has been assigned by the Constitution.

Let's face and accept it. The urge for "judicial intervention" has risen owing to the tendency of the legislature to make frequent amendments, which have eaten into the vitals of the Constitution, referred to by the SC as "Basic Features" in the Kesavananda Bharati judgement of April 1973.

Judicial review is a necessary concomitant of "Fundamental Rights". Else, it is meaningless to enshrine individual rights in the Constitution as "Fundamental Rights" if they aren't enforceable, in courts of law, against any organ of the state, legislative or executive. Thanks to the wisdom of the makers of the Indian Constitution. Hardly anybody in India is aggrieved owing to the SC’s power of judicial review, which invalidates a dozen of statutes and like number of administrative acts on ground of violation of fundamental rights.

It is, thus, clear that the SC of India plays a pivotal role, taking the best of both London and Washington, and standing tall between the two extremes of the supremacy of the US judiciary (though, today it is under a threat from a muscular President) and the parliamentary sovereignty of the British democracy. Hence, if the SC stipulates a time period for the release of papers from the Raj Bhavan or Rashtrapati Bhavan, heavens won’t crash into the boulevards of either the state or national capital.

Abhijit Bhattacharyya is a columnist and author.