The changing facets of Indian judiciary

At the time of the framing of the Indian Constitution, the Constituent Assembly, which was entrusted with that historical task, studied in detail the provisions of the Constitutions of other democracies, such as the United States of America and France to some extent, and the practices in the United Kingdom, where no written constitution existed at all. That exercise influenced the way that august body went about its task further.

One important aspect of the system of governance in the USA, which was borrowed during that process, was the doctrine of separation of powers which determined the division of functions and responsibilities of the State, as between its three wings, namely the Executive, the Legislature and the Judiciary, termed as the doctrine of separation of powers. More than 75 years down the line, the way that relationship has panned out makes for a very interesting study.

Each wing has, from time to time, tested the waters in the jurisdiction of the other two, primarily with a view to making the distinction between the wings seamless and the relationship harmonious. A most welcome ambience, of mutual reinforcement and synergy, thus came into being. That is not to say, however, that there have not been instances when that happy coexistence was not threatened by incidents that were not entirely desirable.

The government of India proposing, and Parliament passing into law, the bills relating to 73rd and 74th amendments to the Constitution of India, were, most certainly, stellar examples of the Executive and Legislature acting in tandem to impose upon the state governments the duty to promote the development and empowerment of local self-government bodies, the Panchayati Raj Institutions and the Urban Local Bodies.

Similarly welcome was the arrangement by which Members of Parliament and Legislatures were provided with funds which, subject to certain guidelines, they could allot to ongoing developmental programmes within their constituencies. Members of the Upper House were also given such grants, albeit with slightly different guidelines. A good step that gave legislators an opportunity to play a role in development activities. Less acceptable, however, was the practice of making MPs as chairpersons or directors on the Boards of Directors of Public Sector Enterprises. Nor was, for that matter, their being given a role in the selection of individual beneficiaries for development programmes. Such arrangements tend to compromise not only the desirability of remaining aloof from the functions of the Executive wing, but also their ability to hold it accountable for its actions.

The powers that the Supreme Court enjoys, to nudge the Executive and Legislature, has also been gainfully used by it on umpteen occasions. The direction to use CNG gas alone to propel motor vehicles use in Delhi; measures taken to ensure that the Election Commission of India takes corrective measures to ensure free, fair and impartial polls, the grant of rights to transgender persons and children of live-in parents are all examples of the court using that power in public interest.

The verdict of the Supreme Court in the Golak Nath case in 1967, keeping out of the purview of the legislative power of Parliament, the part of the Constitution of India which deals with fundamental rights, was probably the most historical in terms of purport and impact. Judgement, whose intention was carried even further by a subsequent ruling of the Supreme Court in 1973, was in the Kesavananda Bharati case, ruling that Parliament cannot alter the fundamental features or basic structure of the Constitution.

And in an action typical of the interplay between judiciary and the legislature in 1971, the Parliament passed the 24th amendment to the Constitution.

Similarly noteworthy was the judgement in the Ram Manohar Lohia vs State of Bihar case in 1966. Justice Hidayatullah was one of the judges on the bench and is remembered for famously expostulating the principle that ‘law and order’ is about enforcing specific laws against individual crimes (like theft), while ‘public order’ deals with broader societal tranquillity, addressing acts that disturb the community’s overall peace, safety, and the ‘even tempo of life,’ with a much wider, often communal, impact, like riots or mass panic. The key difference is the degree and extent of disruption. While law and order affects individuals, public order affects the public, making it a more serious, widespread concern.

I deem it an honour and privilege that I had the unique opportunity of working under Justice Hidayatullah when he was the Vice-President of India, an experience that brought about a major change in my attitude towards public life.

There is, however, a feeling in certain quarters that the Supreme Court could have done more in the matter of protecting the environment of the country from the harm that can be caused by certain activities of the government, such as mining.

Another disappointing aspect, although one which belongs to the distant past, was its judgement in 1976 (when there was an emergency in the country) holding that the right to life was not a gift of the Constitution, a verdict which resulted in the detention of thousands of opponents of the ruling party being detained under the Maintenance of Internal Security Act.

Another instance of a judicial pronouncement being nullified by an act of Parliament was in 1975. The Allahabad High Court, in the case of Raj Narain declared Prime Minister Indira Gandhi’s 1971 election to Parliament void due to electoral malpractices, finding her guilty of using government resources for campaigning, causing a major political crisis. Indira Gandhi appealed to the Supreme Court, which granted a partial stay. The judgment remains a landmark in Indian constitutional history, as the only instance where a sitting Prime Minister’s election was set aside. Shortly after, on June 25, 1975, she declared a nationwide Emergency. Also, Parliament enacted the 39th Amendment to the Constitution, placing the election of the Prime Minister beyond the purview of judicial review. However, this was subsequently challenged, and the Supreme Court restored the status quo ante.

Then there was this judgement of the Supreme Court in which, quite rightly, Justice Chinnappa Reddy ordered, through a judgement, the extension of the arrangement of payment of family pension, to the widows of judges who had passed away. What Justice Chinnappa Reddy did should, in the normal course of events, have been done by the court in its administrative capacity. That it was done through a judgement is an instance of the court filling in a gap in executive action through a judicial pronouncement.

I distinctly recall the tremendous relief my mother experienced when that order was given effect to and, for 20 years thereafter, lived in relative financial comfort.

An interesting memory I have is of the party arranged to bid farewell to Justice Chinnappa Reddy at Hyderabad, and my father having the rare glass of wine!

(The writer was formerly Chief Secretary, Government of Andhra Pradesh)