08-30-2005, 07:16 AM
Pioneer
<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>Congress and the judiciary </b>
A Surya Prakash
The recent attempt by some politicians to whip up a 'confrontation' with the judiciary over the Supreme Court's order in regard to admissions to private unaided professional colleges should be a matter of concern for all citizens who value the independence and privileged presence of both Parliament and the Supreme Court in the constitutional scheme of things and who yearn for their harmonious coexistence.
Such has been the criticism of the court's order that it provoked the Chief Justice to say that the Government could as well wind up the courts. His outburst was obviously triggered not so much by the comments against the court's order as by the tone and tenor of the attack.
Though the issue has not gone out of hand, the nature of the attack on the judiciary is worrisome because of the disturbing track record of the Congress vis-Ã -vis judicial independence.
We need to ask ourselves why a clash between Parliament and the judiciary becomes a distinct possibility the moment the Congress comes to power at the Centre. Second, will the party never reconcile to the existence of an independent judiciary?
Though the judiciary is not entirely faultless, there is no denying that it has had to step in time and again to save the Constitution and basic democratic principles enshrined in it. The reckless use of Article 356 to impose Central rule in states is a case in point.
<b>The Congress, which ruled the country for all but three years in the first four decades after independence, freely used this constitutional provision to undo the peoples' verdict whenever it was rejected by the voters in the states.</b>
Finally, the Supreme Court stepped in and ended this periodic assault on the Constitution, when a nine-judge bench gave its verdict in the Bommai case over a decade ago. <b>The court made it known that it would no longer remain a passive spectator to the violation of constitutional principles by the Union Government.</b>
It declared that henceforth the validity of the proclamation issued under Article 356 would be judicially reviewable, that the court would, if necessary, scrutinise the material sent to the President and if necessary, restore the Ministry that has been dismissed and revive the Assembly that has been dissolved.
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Suffice it to say that through this judgement, the court virtually put an end to the misuse of this provision by the Union Government. Since this judgement, there has been a dramatic decline in the application of Article 356.
The Supreme Court has also ticked off partisan governors like Syed Sibte Razi, who sought to undo the electoral verdict in Jharkhand earlier this year. But for the firmness displayed by the court, such criminal subversion of constitutional principles would have been the order of the day.
The Supreme Court's judgement in the Bommai case is just one example of the court's critical role in furthering the cause of democracy and protecting the rights of the primary stakeholders the people.
There are scores of other cases, but the one that truly stands out is the court's judgement in the Keshavananda case in 1973. In this case the court propounded the doctrine of 'basic structure'. It held that while Parliament could amend any part of the Constitution, it should not alter the basic structure of the Constitution.
Unwilling to accept this doctrine, the Congress launched a nation-wide campaign against the judiciary and it was not uncommon in those days to hear the demand for 'committed judges' (judges 'committed', not to the Constitution but to the Congress point of view!) from Congress quarters.
<b>Members of this party accused the judiciary of being reactionary, conservative and anti-poor and even tried to whip up public sentiment against the Supreme Court.</b> Much of this oral onslaught against the judiciary was translated into constitutional provisions after Indira Gandhi imposed the Emergency in June 1975.
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The first of these amendments was the 38th Amendment Act which barred judicial review of the emergency proclamation. Next came the 39th Amendment, which was meant solely to pre-empt the Supreme Court, which was hearing India Gandhi's election case.
Then came the 42nd Amendment which declared that henceforth any amendment to the Constitution cannot be questioned "in any court on any ground". It declared that Parliament's power to amend the Constitution was unlimited. Which meant that Parliament had the unfettered power to preserve or destroy the Constitution.
Finally, the most shocking and reprehensible provision in the 42nd Amendment was the power it vested in the President for two years to amend these provisions in the Constitution, through an executive order!
Emboldened by the Emergency, which had converted India into a one-party dictatorship, <b>Congress tongues wagged freely in Parliament. Apart from displaying utter contempt for the judiciary, Congressmen misused parliamentary privilege to even hold out threats to the Supreme Court</b>.
Swaran Singh, who had authored the party's 'constitutional review' told the Lok Sabha on October 26, 1976, that the Constitution did not empower the High Courts and the Supreme Court to examine the constitutional validity of a constitutional amendment. Accusing the courts of committing "crude sort of invasion", he said, "Unfortunately, the courts transgressed the limits prescribed for them."
Mr NKP Salve loftily declared in Parliament,<b> "There comes a time when the Constitution has to be saved from the court and the court from itself." </b>Speaking a day after Swaran Singh, Prime Minister Indira Gandhi, who had whipped up a campaign against the judiciary, said, "We do not accept the dogma of the basic structure."
Referring to Swaran Singh's remark that the judges had 'imported' the phrase 'basic structure', Mrs Gandhi said, "I would not say that they have imported it, since it does not exist in any other Constitution. They have invented it."
But, here is this gem from CM Stephen. This man, who often made a public display of his servility to the Nehru-Gandhi family, ponderously declared: "Now, the power of this Parliament is declared to be without any limit and the laws passed by this Parliament by way of amending the Constitution are declared to be out of bounds for any court.
It is left to the courts whether they should defy it. I do not know whether they will have the temerity to do that but if they do, as the Law Minister said, that will be a bad day for the judiciary. The committee of the House is sitting with regard to the enquiry into the conduct of judges and all that. We have got our methods, our machinery."
Â
To the best of my knowledge, no other citizen of India has sought to intimidate the Supreme Court in this manner. Mr Stephen got away with it because he said this within a parliamentary chamber.
However, his remarks epitomised the basic attitude of Congressmen towards the judiciary in the 1970s. Since the party has such a terrible legacy in the area of constitutionalism, one's antenna is up whenever it comes to power, more so when, just as in the early 1970s, it survives in office with the help of communist support.
The Congress has never reconciled itself to the 'basic structure' doctrine. But, imagine what would have happened to democratic values and the basic rights bestowed on us by the Constitution if the Supreme Court had not erected this firewall called 'basic structure'.
Would the scores of vandals, who have strutted around on the political firmament over the last 30 years, have left the Constitution unmolested? Would the core of this Constitution have survived the CM Stephens of the Congress?<span style='font-size:14pt;line-height:100%'> That is why the people at large need to be extra vigilant when members of the Congress turn critical of the judiciary. </span>
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<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>Congress and the judiciary </b>
A Surya Prakash
The recent attempt by some politicians to whip up a 'confrontation' with the judiciary over the Supreme Court's order in regard to admissions to private unaided professional colleges should be a matter of concern for all citizens who value the independence and privileged presence of both Parliament and the Supreme Court in the constitutional scheme of things and who yearn for their harmonious coexistence.
Such has been the criticism of the court's order that it provoked the Chief Justice to say that the Government could as well wind up the courts. His outburst was obviously triggered not so much by the comments against the court's order as by the tone and tenor of the attack.
Though the issue has not gone out of hand, the nature of the attack on the judiciary is worrisome because of the disturbing track record of the Congress vis-Ã -vis judicial independence.
We need to ask ourselves why a clash between Parliament and the judiciary becomes a distinct possibility the moment the Congress comes to power at the Centre. Second, will the party never reconcile to the existence of an independent judiciary?
Though the judiciary is not entirely faultless, there is no denying that it has had to step in time and again to save the Constitution and basic democratic principles enshrined in it. The reckless use of Article 356 to impose Central rule in states is a case in point.
<b>The Congress, which ruled the country for all but three years in the first four decades after independence, freely used this constitutional provision to undo the peoples' verdict whenever it was rejected by the voters in the states.</b>
Finally, the Supreme Court stepped in and ended this periodic assault on the Constitution, when a nine-judge bench gave its verdict in the Bommai case over a decade ago. <b>The court made it known that it would no longer remain a passive spectator to the violation of constitutional principles by the Union Government.</b>
It declared that henceforth the validity of the proclamation issued under Article 356 would be judicially reviewable, that the court would, if necessary, scrutinise the material sent to the President and if necessary, restore the Ministry that has been dismissed and revive the Assembly that has been dissolved.
Â
Suffice it to say that through this judgement, the court virtually put an end to the misuse of this provision by the Union Government. Since this judgement, there has been a dramatic decline in the application of Article 356.
The Supreme Court has also ticked off partisan governors like Syed Sibte Razi, who sought to undo the electoral verdict in Jharkhand earlier this year. But for the firmness displayed by the court, such criminal subversion of constitutional principles would have been the order of the day.
The Supreme Court's judgement in the Bommai case is just one example of the court's critical role in furthering the cause of democracy and protecting the rights of the primary stakeholders the people.
There are scores of other cases, but the one that truly stands out is the court's judgement in the Keshavananda case in 1973. In this case the court propounded the doctrine of 'basic structure'. It held that while Parliament could amend any part of the Constitution, it should not alter the basic structure of the Constitution.
Unwilling to accept this doctrine, the Congress launched a nation-wide campaign against the judiciary and it was not uncommon in those days to hear the demand for 'committed judges' (judges 'committed', not to the Constitution but to the Congress point of view!) from Congress quarters.
<b>Members of this party accused the judiciary of being reactionary, conservative and anti-poor and even tried to whip up public sentiment against the Supreme Court.</b> Much of this oral onslaught against the judiciary was translated into constitutional provisions after Indira Gandhi imposed the Emergency in June 1975.
Â
The first of these amendments was the 38th Amendment Act which barred judicial review of the emergency proclamation. Next came the 39th Amendment, which was meant solely to pre-empt the Supreme Court, which was hearing India Gandhi's election case.
Then came the 42nd Amendment which declared that henceforth any amendment to the Constitution cannot be questioned "in any court on any ground". It declared that Parliament's power to amend the Constitution was unlimited. Which meant that Parliament had the unfettered power to preserve or destroy the Constitution.
Finally, the most shocking and reprehensible provision in the 42nd Amendment was the power it vested in the President for two years to amend these provisions in the Constitution, through an executive order!
Emboldened by the Emergency, which had converted India into a one-party dictatorship, <b>Congress tongues wagged freely in Parliament. Apart from displaying utter contempt for the judiciary, Congressmen misused parliamentary privilege to even hold out threats to the Supreme Court</b>.
Swaran Singh, who had authored the party's 'constitutional review' told the Lok Sabha on October 26, 1976, that the Constitution did not empower the High Courts and the Supreme Court to examine the constitutional validity of a constitutional amendment. Accusing the courts of committing "crude sort of invasion", he said, "Unfortunately, the courts transgressed the limits prescribed for them."
Mr NKP Salve loftily declared in Parliament,<b> "There comes a time when the Constitution has to be saved from the court and the court from itself." </b>Speaking a day after Swaran Singh, Prime Minister Indira Gandhi, who had whipped up a campaign against the judiciary, said, "We do not accept the dogma of the basic structure."
Referring to Swaran Singh's remark that the judges had 'imported' the phrase 'basic structure', Mrs Gandhi said, "I would not say that they have imported it, since it does not exist in any other Constitution. They have invented it."
But, here is this gem from CM Stephen. This man, who often made a public display of his servility to the Nehru-Gandhi family, ponderously declared: "Now, the power of this Parliament is declared to be without any limit and the laws passed by this Parliament by way of amending the Constitution are declared to be out of bounds for any court.
It is left to the courts whether they should defy it. I do not know whether they will have the temerity to do that but if they do, as the Law Minister said, that will be a bad day for the judiciary. The committee of the House is sitting with regard to the enquiry into the conduct of judges and all that. We have got our methods, our machinery."
Â
To the best of my knowledge, no other citizen of India has sought to intimidate the Supreme Court in this manner. Mr Stephen got away with it because he said this within a parliamentary chamber.
However, his remarks epitomised the basic attitude of Congressmen towards the judiciary in the 1970s. Since the party has such a terrible legacy in the area of constitutionalism, one's antenna is up whenever it comes to power, more so when, just as in the early 1970s, it survives in office with the help of communist support.
The Congress has never reconciled itself to the 'basic structure' doctrine. But, imagine what would have happened to democratic values and the basic rights bestowed on us by the Constitution if the Supreme Court had not erected this firewall called 'basic structure'.
Would the scores of vandals, who have strutted around on the political firmament over the last 30 years, have left the Constitution unmolested? Would the core of this Constitution have survived the CM Stephens of the Congress?<span style='font-size:14pt;line-height:100%'> That is why the people at large need to be extra vigilant when members of the Congress turn critical of the judiciary. </span>
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