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Mainstream, Vol XLV No 22

A Mature Response is the Need of the Hour

Saturday 19 May 2007, by Rajindar Sachar

The threat held out to the judiciary by some politicians because of the interim stay of OBC quotas shows lack of maturity and understanding of the role of the judiciary in our constitutional set-up. Is it advisable to raise the pitch, however important the issue may be? After all, we are a civilised constitutional democracy and must proceed on the basis of bonafide action by each instrumentality of the state, however we may disagree with it.

The charge that courts do not understand the sensitivity of the matters affecting the masses is a bogey politicians tend to put forward to conceal their own ineptness.

May one query the politician as to why while introducing reservation in services for OBCs in 1990, the quota in higher education was not included at that time?

In 1951 the SC held that reservations could also be given in promotions but in 1992 the SC took the contrary view. Parliament amended the Constitution to facilitate reservations in promotions. The Supreme Court upheld the amendment thereby accepting that this was a policy matter (not forbidden by the Constitution) and the Court therefore respected the mandate of Parliament. No scope of over-reaching was even attempted.

Again when the Supreme Court held illegal the accelerated seniority given to the Scheduled Castes, Parliament amended the law to reverse that view. The challenge to that amendment was negative by the Court.

Again the Supreme Court conceded to Parliament the exclusive right to expel Members of Parliament for any alleged misbehaviour within the precincts of Parliament.

But now suddenly when the Supreme Court stayed as an interim measure the implementation of OBC quotas for this session, the Court has been lampooned as indulging in adventurist incursion. So much was the political gimmickry and arrogance of the executive that it was not willing to exclude the creamy layer segment even for this academic year (and which, many impartial Court observers feel, may have persuaded the Court to relax its total stay and allow amendment to operate for the non-creamy OBC students). Is it that the OBC leadership is in the hands of the creamy layer and hence a stand which might have found acceptance by the Court, and helped non-creamy poor OBCs was not even considered, even when urged by non-OBC parties from within the Front? And yet the chorus of aggressive blaming game against the Supreme Court is acquiring a shriller tone.

Politicians seem to think that the courts ought to give to all the Parliament’s decisions an automatic seal of approval. But that would mean being false to the oath by the judge who can only uphold the lawful decisions, and cannot keep silent in the face of illegality.

In this enunciation of respective jurisdiction of different instrumentalities of state, it worth quoting the observations of French Philosopher Baron De Montesquieu who said that
when the legislative and executive powers are united in the same persons or body, there can be no liberty because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to enforce them in a tyrannical manner……. Were the power of judging joined with the legislature the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislature. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.

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JUDICIAL activism has always invited controversy from the executive, but at the same time it has invited kudos from the public who, being so callously sidelined by the executive, find some solace from the restraining hand exercised on them by the judiciary. But the judiciary also evidently cannot run riot. It needs to be remembered, as said by Alexander Hamilton, one of the founding fathers of the American Constitution, that “the exercise of judicial review” only supposes that the power of the people is superior to both (the court and legislature).

But then as Chief Justice Rehnquist of the US Supreme Court said:
Judges, so long as they are relatively normal human beings can no more escape being influenced by public opinion in the long run than can people working at other jobs.

As aptly put by Chief Justice Patanjali Sastri (1952),
Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provision for judicial review of legislation as to its conformity with the Constitution.

If, then, the courts in this country face up such an important and none-too-easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the ‘Fundamental Rights’, as to which this Court has been assigned the role of a sentinel on the ‘qui vive’. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set-up are out to seek clashes with the legislatures in the country.
Now that the matter is to be heard shortly and hoping it will by a Constitutional Bench, we must withhold our comments till after the decision.

It should be noted that the present judicial activism has been brought about as a consequence of the misfeasance of politicians. It will be a pity if ever a climate was created against the exercise of judicial activism, because such eventuality may lead to the loss of faith in law as an instrument of social change and justice.

But I can take solace that this will not happen, because as the injunction of ‘The Holy Quran’ says:

Justice is an unassailable fortress, built on the brow of a mountain which cannot be overthrown by the violence of torrents, nor demolished by the forces of armies.

The author, a former Chief Justice of the Delhi High Court, was the chairman of the Prime Minister’s high-level panel to look into the status of Muslims.

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