‘The Constitution does not envisage judicial review as the only way to correct every wrong’

J. S. Verma, Former Chief Justice of India
Posted online: Saturday, April 07, 2007 at 0000 hrs Indian Express

The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large-scale sealing operations of commercial premises in unauthorised areas of Delhi.

The implications of the judiciary’s involvement in this process, which is essentially an executive function, are wide. Several questions arise: What and where is the remedy for any illegality committed in these operations? Are there judicially manageable standards for this exercise? The judiciary having no machinery for implementation of the orders, what happens in the event of refusal or failure of the executive to co-operate? Has the judiciary kept in view the provisions of the general law, particularly the Specific Relief Act which provides that in certain circumstances the discretionary relief must be refused, even though it is legal to grant it? Without considering these and related questions, judicial intervention may attract the vice of ad hocism or tyranny. It would then suffer from the defect of want of juristic base to have precedent value. Inconsistency of decisions in such matters resulting in discrimination is another aspect. Want of legitimacy of judicial intervention is the casualty. These pitfalls must be avoided.

Reference to instances of judicial intervention, which have had a positive effect on the quality of governance, is apposite in this context.

A glaring instance of positive impact is that relating to environment and forests. The state obligation for protection and improvement of environment and safeguarding of forests and wildlife is a principle fundamental in governance under Article 48A; and this is also a fundamental duty of every citizen under Article 51A. A serious global threat to the environment and forests, coupled with the apathy and inertia of the executive to take prompt precautionary measures compelled judicial intervention. The orders made by the Supreme Court in TN Godavarman, AIR 1997 SC 1228 and the other related cases had the desired positive effect, which is self-evident.

I believe there is a similar positive response of the other branches to the Supreme Court decision in the Vishakha case, AIR 1997 SC 3011, which defines ‘sexual harassment’ and gives directions to curb the social evil at workplaces. The executive has taken the steps, accordingly; and there is a move to enact the needed legislation to cover the field. The decision clearly says that it would operate only till enactment of the needed legislation, which was a clear statement that the judiciary was operating in virgin territory for the enforcement of fundamental rights, and not in the occupied field.

Legislative functions

The main areas of apprehension of conflict between the judiciary and the legislature relate to the speaker’s jurisdiction under the Anti-Defection Law; administration of the secretariat of the legislatures; the proceedings in the legislatures, and privileges of the members of the Parliament and the state legislatures; judicial review of the proclamation under Article 356; and judicial review of the laws.

The Constitution gives a clear indication of the desired mutual respect and comity between the judiciary and the legislatures by the provisions in Articles 121, 122, 211, 212 and 361. These provisions restrict any discussion in the Parliament or a state legislature with respect to the conduct of any judge of the Supreme Court or of a high court in the discharge of his duties except upon a motion for the removal of the judge; similarly, the proceedings in Parliament or a state legislature shall not be called in question in courts on the ground of any alleged irregularity of procedure, nor any officer or member shall be subject to any court’s jurisdiction in respect of the exercise by him of those powers; and immunity from courts is provided to the president and governor for the exercise and performance of the powers and duties of his office. This is the broad feature of the area of exclusive dominance of legislative and judicial power, which must guide both branches in this debate.

Jharkhand order

The recent Interim Order dated 9 March 2005 made by the Supreme Court in the Jharkhand Assembly case has been subject to considerable adverse comment, not only by the Speaker of Lok Sabha, but also by some eminent lawyers and jurists. With due respect, I am inclined to agree with them on this issue. By its order, the court fixed the date for the session of the legislature, its one-point agenda to have a floor test; issued directions to the speaker relating to conduct of the proceedings; and ordered video-recording of the proceedings with direction to send a copy to the court.

It is sufficient to say that the court overlooked the earlier binding decisions of larger benches laying down the parameters of separation of powers between the judiciary and the legislatures relating to immunity of the proceedings from judicial review. It was not a matter amenable to judicial intervention. If the court felt that ‘judicial hands off’ was not warranted to save the democratic process, it could have asked counsel to take instructions from the governor and report the same day whether he would prepone the date of the session and direct the floor test. I am sure the governor would have taken the hint and done the needful making court intervention unnecessary. That would have been an act of judicial statesmanship. I do hope the Supreme Court itself would soon correct the aberration of the above orders in the Jharkhand and UP cases.

‘Cash for query’ case

This is another sensitive area. It continues so, because of the failure to codify the privileges as required by Articles 105 and 194. Naturally, whenever there is a claim of a new privilege that is not specifically recognised, the need is to interpret the Constitution to decide that question. Once a privilege is so recognised, the exercise of that privilege is to be controlled by the legislature, immune from judicial review. Supreme Court being the final arbiter of the meaning of the Constitution, decision on the question of existence of the privilege is in the domain of the judiciary; and, thereafter, its exercise is within the legislature’s domain. This is the basic constitutional premise.

The recent judgment dated 10 January 2007 in the matter relating to expulsion of some members of Parliament for taking bribes to put questions in Parliament, labeled as ‘cash for query’ case, has evoked a mixed response. The court held that legislatures must have the power to expel members for misconduct as a self-cleansing measure. Thus, this privilege was upheld rejecting the challenge of absence of such a power in the House. This has been duly acclaimed.

The other part of the judgment holding that legislatures cannot claim immunity from limited judicial review of the exercise of that power causes concern. Howsoever limited be the judicial scrutiny, availability of judicial review in that area erodes the separation of powers and immunity of the proceedings asserted by the Constitution. I do hope the court will have occasion to re-examine this part of the judgment, and it will remove the area of potential conflict.

Judicial review of Article 356

The Supreme Court in S.R. Bommai, AIR 1994 SC 1918, has upheld justiciability of the proclamation under Article 356. There is unanimity on the broad issue of justiciability, even though there is difference in the separate opinions on the scope and extent of permissible judicial review. In my separate opinion in that case, I have upheld only a limited judicial review confined to cases amenable to the strict objective test, calling for ‘judicial hands off’ in the remaining cases wherein even an element of subjectivity is involved in the decision to invoke Article 356. I also relied on the test of judicially manageable standards to determine the area of justiciability.

In my view, the Constitution does not envisage judicial review as the only mode for the correction of every wrong, and it has left that task in the political matters, which have no judicially manageable standards, for correction by the political process that is better equipped for the purpose. This part of the constitutional scheme is to be remembered by all branches.

The invocation of the power under Article 356 recently in relation to Bihar and the Supreme Court decision in 2006 on its validity is a case needing specific mention. The proclamation under Article 356 and dissolution of the Bihar Assembly were challenged in the Supreme Court. The challenge was entertained and fresh elections were not interrupted. The fresh electoral verdict was clearly against the exercise of power under Article 356.

The Supreme Court delivered a divided judgment after the electoral verdict. The majority opinion, in substance, held invalid the invocation of Article 356 and fastened the blame on the Bihar Governor for his report saying that it misled the Union government. However, the governor alone was criticised and not the Union government. It further said, that in the circumstances of the case no further relief need be granted. The separate minority opinion of K.G. Balakrishnan J. (as he then was) relied on my opinion in S.R. Bommai case to differ from the majority saying that the case was not amenable to judicial intervention.

The doubts arising from the majority view are many: If the proclamation could be held invalid and the governor faulted for his report, why was the Union government spared, when it was the deciding authority not bound to act merely on the governor’s report? What useful purpose was served by entertaining the petition and not stopping fresh elections, which were bound to complicate the issue of ultimate relief if the challenge succeeded, as it did? Does this case not indicate the lack of judicially manageable standards on the basis of the larger scope of judicial intervention according to the majority view in S.R. Bommai’s case? Is there not the need to re-examine the scope of judicial review of a proclamation under Article 356 in the light of the recent experience in the Bihar case?

The facts of the Bihar case show that an element of subjectivity was involved in taking the final decision to invoke Article 356 and the strict objective test was not available. There were no judicially manageable standards to enable judicial intervention. The correction could be made politically by a fresh electoral verdict, as did happen. This would appear to be the real reason for the inability to grant any substantial relief even after upholding the allegation of misuse of power. The final outcome on this occasion, despite judicial intervention was the same, that is, correction by the political remedy of electoral verdict.

For the present it is better to leave this issue at this stage with a note of caution expecting the different branches to be more circumspect in the exercise of their respective power.

Conclusion

The scheme of separation of powers in its essence, and not with rigidity is indication of a culture of joint responsibility of all branches of governance to work together for serving the common purpose indicated in the directive principles, which are the principles fundamental in governance to guide them. Certain gaps and grey areas in the Constitution are constitutional abeyances or hedges to prevent rigid postures and to promote a spirit of co-operation with mutual respect. Healthy conventions developed in the working of the Constitution are intended to fill those gaps. This has been done to a great extent till now, and the effort needs to continue.


Excerpted from the Pandit Kunji Lal Dubey Memorial Lecture, 2007, at Rani Durgavati Vishwavidyalaya, Jabalpur on March 24