Day before yesterday, SRI.Jagdeep Dhankhar, the honorable Vice President of India, raised certain serious questions, ofcourse, some questions are pertinent to the judiciary in general, and severely criticised the judgement pronounsed by the Supreme Court on the legal dispute between R N Ravi, the honorable Governor of Tamil Nadu and Stalin, the honorable Chief minister of Tamil Nadu. The Supreme Court, in that controversial judgement, unilaterally fixed a time frame to President of India and the Governors to take a decision on the bills passed by the state legislature. Moreover, the Supreme Court pronounced that, the bills pending before the President of India and Governors for more than three months are declared as deemed to be passed. The senior lawyers of the Supreme Court, who affiliated with the I.N.D.I alliance, in tune with their political likes and dislikes passed sharp comments against the Vice President of India, ignoring the legal and logical ramifications of the judgement. The judgement of the Supreme Court as well as the criticism raised by the Vice President are deserved to be discussed by the public at large because, we the people of India have the right to know what happens in the democratic polity.
According to the Article 111 the President of India has been empowered to take a decision on the bills passed by the parliament. The constitution of India provides him or her three options – (1) to assent, (2) to withhold and (3) to send back for reconsideration. The decision is to be taken by the president “as soon as possible”. The Supreme Court,in the judgement defined the term “as soon as possible” as the maximum period of three months. If, the President of India takes the second option, that is to withhold the bill then, it is absolutely meaningless to fix a time frame because, logically no time frame can be fixed to withhold a bill. Moreover, the President is not expected to record any reason to withhold the bill. The President is expected to send his suggestions to the parliament,if and only if,he desires to do so, when he send back the bill for reconsideration.
In fact the judgement of the Supreme Court amounts to the ammendment of the constitution because, by ammendment, according to the Article 368 of the constitution, it means “by way of addition, variation or repeal any provision of the constitution”. The Supreme Court added ” the maximum period of three months” to the Article 111 violating the letter and spirit of the constitution.The Supreme Court of India is not empowered to ammend the constitution. The constitution can be ammended only by the parliament in accordance with the Article 368. Moreover, if, the Supreme Court wants to test the Constitutional validity of the Article 111 and fill up the vaccum, if any, that should be done by constitution bench. The two member bench is not empowered either to test the validity of the said article or to ammend the constitution. Therefore, judgement of the Supreme Court of India in fixing the time frame for the President of India to take a decision on the bills passed by the parliament amounts to the blatent violation of the constitution.
Applying the same logic to the act of passing the bill to make it a law, the Supreme Court unilaterally passed all the bills which have been pending for assent of the President and the Governors for more than three months. The constitution of India empowers the President in the case of the bills passed by parliament and Governors in the bills passed by state assemblies to affix their signature to make the bills laws. The Supreme Court of India snatched the powers of the President and the Governors and affixed its signature to pass the pending bills. The legally valid way was to issue directions to the President and the Governors to put their signature on the pending bills. However, the Supreme Court took over the signatury powers of the President and the Governors violating the Constitutional codes and codes of the legal morality. In light of the illegal, illogical and atrocious judgement of the Supreme Court of India we cannot but ask fundamental questions regarding the functioning of democratic polity.
Hence, we have to start with the basic question that, what should be prevailed in the process of law making? Whether the collective wisdom of the will of the people of India or the learned opinion of two or more judges of the Supreme Court ? The founding fathers of the Constitution of India favour the collective wisdom of the will of the people over the learned opinion of the judges of the Supreme Court. The constitution of India gives primacy to the collective wisdom of the people of India as the preamble to the constitution of India has specified that, we the people of India wrote the constitution, submitted the same to the people of India and the same is being implemented by we the people of India. The Constitutional Assembly which had been represented by all sections of we the people of India engraved the “lakshman rekha” which should not be surpassed by the legislature, executive and judiciary. Any attempt to cross over the boundaries engraved by the constitution, by any Constitutional authority, would be detrimental to the democratic functioning. Hence, the process of law making has been earmarked as the exclusive functioning of the legislature, the implementation of the laws has been entrusted with the executive and the judiciary has been authorised to interpret and test the Constitutional validity of the laws made by legislature. But unfortunately ,the over-active and aggressive judiciary trespassing the boundaries and passing judgements which annihilate the basic norms of democracy.
The parliament unanimously made the ammendment to the constitution to ensure transparency in the recruitment process in judiciary. The matter was challenged by a few people before the Supreme court. The Supreme Court quashed the ammendment act, unanimously passed by the parliament and approved by sixteen state assemblies, on the ground that if, judges are not selected by the judges then,that would adversely affect the freedom of judiciary. Freedom is not an exclusive privilege of judiciary alone. The executive, legislature and the public have lequal rights to enjoy freedom. According to our constitution, no authority, no institution and no establishment, however high they are, is expected to enjoy not more than the freedom what a layman in the street is able to enjoy.
Freedom of judiciary does not mean the unregulated and unjudicial overreaching of judiciary to the domains of legislature and executive. India is the land that defined freedom as self regulation. A society that regulates itself is the law abiding society and and an individual who regulates himself is the law abiding citizen. This rule is squarely applicable to all institutions in a democratic polity. Unfortunately, the indiscriminate application of Artle 142, which has been incorporated in the constitution as good as life saving drugs, by the judiciary is detrimental to the very existence of democracy. Life saving drugs are not meant to applied on every now and then. It is meant for emergency use. The lethal effects of the life saving drugs should be taken into consideration by a good medical professional. The judiciary also is expected to be taken into consideration of the undemocratic impacts of the application of the Article 142 in any context.
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