Contents of the Chapter
- Presidential vs. Parliamentary
- In Favour of Presidential form
- In Favour of a Parliamentary form
- Separation of Power Used in USA
- Sepration Power used in India
- Indian Scene
- Main Areas of Conflict
- Agruments in Favour of Legislative Council
- Agruments Against Legislative Council
- Nexus with Insurgents
- Boycott of Elections
- Intelligentsia’s Support
- Option before the Government
PRESIDENTIAL VS PARLIAMENTARY
Generally democracies are either Presidential or Parliamentary in form. In the former the Chief executive is directly elected by the people and is not responsible to legislatures. Removal of a President is normally through an impeachment procedure. The advisers to the President and they are not numbers of legislature. On the other hand, in’ a parliamentary democracy the Chief executive and advisers known as Council of Ministers are all chosen from legislature.
Both individually and collectively they are accountable to legislature. The members of the Prime Minister’s team are trained and tested in parliamentary system of governance and all of them go out if legislature chooses to cut their tenure.
Main features of a Presidential form of a Government are:
- No distinction between the National and the Real Executive. The executive powers of the Government are not only vested in the President, they are exercised by him in actual practice also. The President is, thus, both the head of the State and the head of the Government.
- President is elected by the people for a fixed term. The President is elected, not by the Legislature, but directly by the entire electorate. Thus, both in regard to his election and tenure the President is not dependent on the Legislature.
- The President is the sole Executive. All executive powers of the Government are vested in the President and are exercised by him. His cabinet has merely the status of an advisory body. Constitutionally, he is not bound by its advice. He may take the advice or may not take it at all. After getting the opinion of the Cabinet, he may refuse to accept it and may choose to act according to his own judgement.
- Both the President and the Legislature are independent of each other in respect of their terms. The President and the members of his Cabinet are not members of the Legislature. The Legislature has no power to terminate the tenure of the President before its full constitutional course, other than by impeachment. Similarly, the President has no power to dissolve the Legislature before the expiry of its terms. Thus, the President and the Legislature are elected for fixed terms.
The following are the merits of the Presidential form of Government:
- Greater Stability: In the Presidential systems, the head of State has a fixed term. This ensures stability of the system. He is also free from day-to-day Legislative duties and control, which enable him to devote his entire time to administration.
- Valuable in time of War or National Crisis: The Presidential executive is a single executive. In taking decisions, the President is not bogged down by endless discussions in his Cabinet. He can take quick decisions and implement them with full energy. Such a government, therefore, is very useful in the times of war or national crisis.
- Experts may be obtained to head the Departments: The President can select the persons with proper expertise to head various departments of the Government. These heads of departments constitute his Cabinet. The Ministers under the Presidential system, therefore, prove to be better administrators, whereas Ministers in a Parliamentary system are appointed as Ministers not because of administrative acumen, but simply because of their political affiliation.
- Less dominated by the Party Spirit: Once election to the President is over, the whole nation accepts the new President as the leader of the nation. Political rivalries of the election days are forgotten. Both inside the Legislature and outside it, people look at problems from a national rather than a party angle. This gives the system greater cohesion and unity.
- No concentration of Legislative and Executive powers: Presidential system is organised on the principle of separation of functions and checks and balances. This provides much better protection to personal liberties than in the Parliamentary system.
- Autocratic and Irresponsible: The Presidential system places immense powers in the hands of the President. It is autocratic because the President is independent of the control of the Legislature. He may govern largely as he pleases. He cannot be made answerable regularly for the misdeeds of his administration. The Legislature (Congress) in the United Sates can turn down the appointments and treaties made by the President, but it can in no way remove him from the office, except through the impeachment. A power hungry President may misuse his powers to amass wealth, and to finish off political opponents.
- Presidential Election is an Union Affair. The President in this system is elected directly. The election to this office generates great heat and tension. The whole national life gets disturbed. In countries where constitutional traditions are not as deep rooted as in the United States, tensions and instability of the election time can even result in revolutions.
- Friction and Discord between the President and the Legislature: The separation of the Executive and the Legislature may led to conflicts and deadlocks between the President and the Legislature. The Legislature may refuse to accept executive policies, or enact the laws suggested by the executive. The President, on the other hand, may show lack of interest in implementing the laws passed against his will. He may even veto the bills passed by the Legislature. Such deadlocks are more President belongs does not have a majority in the Legislature.
- Responsibility is hard to find: In the Presidential system, it becomes difficult to fix responsibility for the Governmental failures. The President may blame the Legislature, the legislature may put the blame on President. In the US, most of the bills are referred to the report of which the bills are passed. The powers of these committees are immense. The committees have not only seized the power of law making, they have also made fixing of responsibility in this regard very difficult.
In Favour of Presidential form
The presidential form of government has some theoretical advantages:
- Cabinet of is based on competence and integrity;
- Ministers are not motivated by populist measures;
- No time is wasted in politicking;
- No incentive for desertions and defections; and
- The fixed tenure of the President ensures reasonable stanbility.
In Favour of Parliamentary form
- In India parliamentary form of democracy is better. Arguments in favour of Presidential type of democracy do not carry conviction. If the executive’s tenure is fixed for a few years, the executive would be able to pursue his policies without being impeached or challenged by legislature.
- This is not a great advantage. Executive decisions well debated and discussed are more welcome than a single individual pursing a policy. Very often rifts occur between executive and legislature in the Presidential form of Government. Indian society is plural.
- Cultural differences are quite prominent. In such a situation it is possible to choose the members of the Council of Ministers from various regions and cultures. If at all there is any lack of expertise on the part of the Council of Ministers it is compensated by the permanent executive and various advisory bodies, committees and commissions
- Moreover, Indians have considerable experience in the parliamentary form of government. From 1923 onwards, leaders of India were well trained both as members of opposition and as treasury benches in legislatures. After all, a known devil is better than an unknown devil.
- Further more, in the composition of the Council of Ministers it is possible to accommodate leaders of various minorities which is not possible in the Presidential form of democracy. Presidential form of government has not solved many of the social, economic and cultural problems in many countries.
- In many countries of Asia, Africa and Latin America, the Presidential form has degenerated into dictatorship. The moral decay which is responsible for political rot will not disappear with the introduction of the Presidential system. There is perhaps no alternative but to give a fair trial to our parliamentary system, particularly in view of our socio-economic problems, vastness of the country, its traditions, national genius and diversity.
SEPARATION OF POWER
The doctrine of separation of powers, ascribed to a Frenchman, Montesquieu has come to mean an organic separation or separation of government powers, namely, the legislative, the executive, and the judicial powers. Any two of these powers should not fall in the same hands. They should not assume or combine functions essentially belonging toe each other. This is necessary to ward off any kind of tyrannical government. Thus, doctrine of separation of powers stated in its rigid form means that each of the branches of. government, namely, executive or administrative, legislative and judicial should be. confined exclusively to a separate department or organ of government. There should be no overlapping either of functions or of persons.
Separation of Power Used in USA
The Constitution of the United States is usually quoted as the leading example of a constitution embodying the doctrine of separation of powers. While Constitution of the U.S.A. does not expressly provide for a separation of power, the doctrine has been incorporated into the Constitution by the provisions that:
- All legislative powers shall be vested in a Congress
- All executive power shall be vested in President
- All judicial power shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.
Separation Power Used in India
- Under the Indian constitution only executive power is ‘vested’ in the President while provisions are simply made for a Parliament and judiciary without expressly vesting the legislative and judicial powers in any person or body.
- Moreover, India has the same system of parliamentary executive as in England and the Council of Ministers consisting as it does of the members of legislature is, like the British Cabinet. Even, though the Constitution of India does not accept strict separation of powers it provides for an independent judiciary with extensive jurisdiction over the acts of the legislature and the executive.
- The Constitution in article 50, however, specifically ordains separation of the Judiciary from the Executive. The vitality and importance of the doctrine of separation of powers lies not in any rigid separation of functions, but in a working synthesis with the guarantee of judicial independence.
- Accordingly, the Indian Constitution has not recognised the doctrine of separation of powers in its absolute form but the functions of the different parts or branches of government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State, of functions, that essentially belong to another.
- The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way.
JUDICIARY VS LEGISLATURE
Conflict between legislature and the judiciary has often given rise to anxiety and grave concern to the governments at the Centre and the States. The executive heaves a sigh of relief when the conflict gets resolved or the matter is put in the cold storage after initial heat over the powers each of these wings of the States enjoy under the Constitution subsidies. There are a number of cases where friction between the two has arisen. There has been a perennial conflict not only in India but also in England about the respective rights and privileges of Members of Parliament and the Judiciary.
- In India, under the written Constitution, the three organs of the Government, viz. the Legislature, judiciary and the executive, have to function within their respective powers and none of them can exceed its powers. Whether, any one of these organs has exceeded its powers or not, is a matter of judicial interpretation.
- In several decisions of the Supreme Court, it has been held that the Supreme Court is the ultimate interpreter of the Constitution and its interpretation is binding on all courts, tribunals and authorities in this country. Under article 141 of the Constitution, the law declared by the Supreme Court is binding on all parties.
- So, if there is any doubt that any particular organ of Government has exceeded its powers, the interpretation ultimately rests with the Supreme Court.
- Even the powers granted by the Constitution to the Members of Parliament and the Assembly are subject to other provisions of the Constitution. They cannot act arbitrarily; nor can they deprive the citizens of their fundamental rights arbitrarily.
- There is a provision in the Constitution for codifying the law relating to the privileges of legislatures and if Parliament makes such a law that will be a law within the meaning of Article 13 of the Constitution; validity of which can be tested before the Supreme Court in the same manner as any other legislation.
- The scheme of the Constitution does not contemplate that Parliament or a State Legislature is not at all liable to be questioned for any violation of law since rule of law is the corner-stone of the Constitution of India.
- Though Legislatures in India have plenary powers they function within limits prescribed by the material and relevant provisions of the Constitution,
Main Areas of Conflict
Following are the Main areas of conflict between the Legislature and the Judiciary:
- Existence, extent and scope of Parliamentary privileges and power of Legislatures to punish for contempt,
- Interference in the proceedings of Parliament/ Legislatures,
- Decisions given by the Presiding Officers of Legislatures under the Anti-defection law; and
- Decision given by the Presiding Officers of Legislatures in administration of their Secretariats.
Powers, Privileges and immunities of Members of Legislatures
The relevant provision of the Constitution relating to powers, privileges and immunities of the members of Parliament and State Legislatures is incorporated under Article 105 and Article 194 respectively. These Articles provide that:
- Subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of the Legislatures, there shall be freedom of speech in the Legislature of the Union and of every State.
- No member of any Legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.
- In other respects, the powers, privileges and immunities of a House of any Legislature, and of the members and committees of a House of such Legislature, shall be such as may from time to time be defined by that Legislature by law, and until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 26 of the Constitution (Forty-fourth Amendment) act, 1978.
Arguments in Favour of Legislative Council
The supporters of these Upper Houses of State Legislatures advance strong arguments. They feel that these Houses must be retained in the national interest. In favour of these Houses, it is said that:
- In India the Lower Houses are constituted on the basis of universal adult franchise. There are no voting qualifications based on education and property. In the Lower House, both the literate as well as illiterate vote on political considerations. It is argued out that in case democracy is to be saved from the caprice of uneducated persons, it is’ essential - that there should be Upper House.
- Another argument advanced is that in every state there are people who have excelled in certain walks of life. The nation must take advantage of their abilities and capabilities. But these persons have no interest in contesting elections. Their services can best be utilised only with the help of Vidhan Parishads.
- It is also argued that the very fact that there is another House, creates a very sobering effect on the Lower House, which does not feel tempted to pass a bill either in haste or under the influence of some momentary impulses. In case any half cooked measure comes up then at least Upper House points that out to the duly elected representatives of the people, leaving to them to accept the suggestion or not. In other words, it points out gravity of problems and suggests solution but does not very much care whether suggestions have been accepted or not.
- Another utility of the Legislative Council is that minority communities in every state can be given representation in this House. Such representation is likely to keep them very much happy and satisfied. Similarly, the services of experienced persons who do not wish to contest elections can also be used in this House.
- Legislative work everywhere has much increased and it is becoming impossible for a single House to handle it efficiently. So some non-money bills or less controversial matters can be introduced in the Upper House and in this way pressure of work in the Lower House is considerably reduced. This is always a welcome relief for the Lower House.
- It is accepted that law making process has become time consuming and sufficient time is taken by each House before a bill becomes an Act. It is also accepted that during this time, the people get an opportunity to express their view point.
- But when the bill goes to the Upper House, the people are bit more clear as to what is going to be passed. Moreover, this time interval is always a welcome because during this period the people can express them selves and if need be changes can even now be introduced.
- It is also argued that Upper House does not stand in any way on the determination of duly elected representatives of the people. All that they do is that they point out certain drawbacks and shortcomings, which should always be welcome. These Houses can serve very useful purpose in case all political parties return there men of eminence who have long and varied experience of life and maintain a good position in society.
- If they are the people with the strength of character and also capacity to render service to the society, they can do a lot of good to the society. Only those should be nominated who enjoy high reputation for their qualities of head and heart and a spotless life career.
Arguments Against Legislative Council
- In view of inherent weaknesses of Vidhan Parishads (Legislative Councils), some critics are of the view that these should be abolished. According to them, in case Parishad agrees with what is passed by the Assembly then it is simply a superfluous House. In case, it does not then it will be characterized as a mischievous. House and will be charged as citadel of reaction standing on the way of policies and programme of duly elected House.
- Another criticism levied against this House is that it is no check on the Assembly. A money bill can be delayed only for a period of 14 days, which is very insufficient period for the members to express their view point. Even in the case of non-money bills, it can only delay a bill for a period of 4 months and if the Assembly is bent upon passing a measure no efforts on the part of the Parishad can check it.
- The Council of Ministers also does not much fear from it because a vote of no confidence does not have any effect for the Ministry.
- It is also argued that the Parishads are usually not even progressive. These have no directly elected elements. Some of the members are nominated ones. Their composition is such that these are not supposed to know public sentiments. Thus, the House is characterized as reactionary and conservative.
- It is argued that in these Houses scholarly or literary or social workers are not nominated. Instead, this chamber is used for providing berth to defeated politicians or those active party workers who somehow or other could not be accommodated in the Assembly or dissidents in the party to avoid party frictions. In other words, the Upper Houses neither represent any caste, class or section of society but only vested interests. All elections or nominations are made on party basis and these chambers are only for increasing party interests and influences.
- A usual argument is that since these chambers do not serve much useful purpose, therefore, their maintenance is not worth the cost which the nation is required to pay for its upkeep and by way of salaries, allowances and other expenses of the members. Incase Parishads are abolished the tax payer will be much saved and the money saved can be used for other useful purposes, including economic development.
- The very fact that only six States have retained Vidhan Parishad proves that bicameralism is not a very popular institution in India in the states. Moreover, practical experience has shown that those states which have no Legislative Councils are in no way doing work less efficiently than the other states. In case, the Councils had been doing very useful work, then the other states must have gone for it.
- Then it is not clear to whom the Parishads represent. In case it is said that in it the teachers, and graduates are to be given representation, along with those who are engaged, in the promotion of co-operative work, then why only these vocations and why not other very important vocations and occupations.
- In case it is felt that in that those who have excelled in any walk of state life, should be given representation, then why nomination has been kept at only l/6th. It should have been kept much higher.
- It is presumed that in this House there will be calm and serene atmosphere, where every problem will be discussed in a passionless atmosphere because the elders have held out no promises to the people at the time of their election.
- But again this is not true because in the Upper House also political considerations very much weigh with the members. Each member votes more or less on party lines and it is said that an Upper House is just extension of the Lower House, in so far as political parties are concerned. There is also no calm atmosphere in these Houses. The elders quite often quarrel with each other and do not provide much needed calmness.
- According to some thinkers, Upper Houses are necessary because these give sufficient time to the people to express their views. According to them when a bill is traveling from the Assembly to the Parishad, the people come to know what is going to be passed. Intervening time can be utilised for expressing opinion by the public and in case there are strong reservations, the bill can be modified as well.
- But again this is not correct because the time taken in passing each bill in one House and stages through which it passes are so many that the people have sufficient time to express themselves, through press and platform. On this ground also, the Upper Houses have no utility.
To conclude, the Upper Houses of State Legislatures are likely to remain under criticisms, in case these are used for providing berth to defeated politicians so that they can become Chief Ministers or Ministers by-becoming a member of either House of legislature. Politicians must take the responsibility to firmly establish the prestige of these constitutional institutions.
Judicial activism is a political term used to describe judicial rulings that are suspected to be based upon personal and political considerations other than existing law. Judicial restraint is sometimes used as an antonym of judicial activism. The term may have more specific meaning in certain political contexts. Concerns of judicial activism are closely tied to constitutional interpretation, statutory construction, and separation of powers. The honorable Supreme Court issued a notice to the Union government seeking an explanation of the steps taken by it to ameliorate the plight of Indian students in Australia, who have been facing racially motivated attacks. Foreign policy is widely considered to be non-justiciable, that is, courts cannot interfere.
Yet, the interference by Indian courts has not wholly been condemned. The next, and almost equally striking, instance is a Supreme Court notice questioning the proliferation of Mayawati statues, allegedly worth crores of rupees, in Uttar Pradesh. Like foreign policy, budgetary allocations are non-justiciable. But judicial interference in this matter too has not been deprecated, nor is it worthy of serious censure. The Emergency of 1975 and its aftermath constituted defining moments for Judicial activism in India. In the infamous decision in ADM Jabalpur v. Shukia (1976) the Supreme Court permitted civil liberties to be suspended during the Emergency. The very Constitution of India permitted the suspension of civil liberties in Part III, such as the right to personal liberty.
- The Constitution was also amended extensively to permit the excesses of the Emergency. In 1975, therefore, permitting civil liberties to be suspended during the Emergency would arguably have constituted deference both to the intent of the framers of the Constitution and to legislative wisdom in other words “judicial restraint.”
- The Supreme Court’s decision in that case, however, despite being judicially restrained, struck a devastating blow to civil liberties in India, and was widely condemned thereafter Justice H.R. Khanna’s eloquent dissent was activist, but celebrated.
- Judicial activism during the Emergency was clearly the need of the hour. Thus, “judicial activism” had a strong moral basis after the Emergency - after all, the Emergency judges ought to have been activist.
- Judicial activism has virtually been constitutionalised in South Africa. The Indian Supreme Court has enforced socio-economic rights, though they are not considered enforceable by the Constitution - the right against malnutrition and the right to shelter are examples. Despite the fact that the Constitution did not permit socio-economic rights to be justiciable or enforceable, the Emergency had taught Indian judges that express constitutional previsions may not necessarily translate into social legitimacy.
- Activist judges in India have consequently fashioned innovative remedies to enforce socio- economic rights. The traditional rule that courts will not Issue injunctions requiring periodic supervision does not typically apply in socio-economic rights cases, where Indian courts periodically review the implementation of their orders almost in an administrative capacity.
- However, judicial activism in India has now taken on an interesting face. The courts in India pursue a form of review which can be described at best as ‘dialogic’ - a term used famously by Peter Hogg and Allison Bushell in the context of the Canadian Supreme Court’s decisions.
- The Indian Supreme Court’s gaze has now gone beyond the protection of the socially and economically downtrodden, and into the realm of public administration. However; its opinions often resemble aspirations rather than binding pronouncements.
- These opinions bear a strong resemblance to unenforceable, advisory opinions since it will be difficult to comprehensively enforce them as law. They nonetheless set the tone for public discourse and debate.
- Their greatest value lies in the creation of a dialogue with the other branches of government, in the consequent endeavor towards transparency in public administration, and in their giving a voice to the Indian citizen, albeit only the citizen who has the time and the resources to petition the courts.
- Attempts to petition the Supreme Court recently have demonstrated this trend towards dialogue and transparency. Following the Mumbai terror attacks of November 2008, a former Attorney General of India filed a petition before the Supreme Court seeking to better equip the Indian police. The public interest petition in the context of the attacks on Indian students in Australia tells a similar tale.
- However, a court which issues unenforceable (one should say enforceable with some difficulty) opinions, toys with the dangerous possibility of delegitimating its own existence. It also begs the question of institutional efficiency: of whether such functions can be better performed by another institution which does not have the Supreme Court’s case load but one which matches its visibility if such an institution were ever capable of being devised. However, whispers of corruption in the judiciary, and the act of withholding information regarding judges’ assets, do not make the case for judicial activism any stronger.
- For the first time during the judgment of the majority in the Keshavananda Bharati case (the fundamental rights case) court held that a Constitutional Amendment duly passed by the legislature was invalid if it damages or destroying its basic structure. This was a gigantic innovative judicial leap unknown to any legal system. The masterstroke was that the judgment could not be annulled by any amendment to be made by Parliament because the basic structure doctrine was vague and amorphous.
- Judicial activism earned a human face in India by liberalising access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justices V.R. Krishna lyerand P.N. Bhagwati. The Supreme Court gained in stature and legitimacy. Later, when the independence of the judiciary was threatened by punitive transfers, the court entered the arena of judicial appointments and transfers.
- With the increasing criminalisation and misgovernance and the complete apathy of the executive, the court (under the leadership of Chief Justice Verma and Justices Bharucha and Sen) took up the case of terrorist funding linked to political corruption through the ‘hawala’ route in the Vineet Narain Case (Jain hawala Case). A cover-up by the Central Bureau of Investigation to protect Its political masters was exposed and the court monitored the investigation upholding the principle “Be you ever so high the law is above you.”
- The courts on several occasions have issued directions in public interest litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by former and serving, legislators, nursery admissions, and admissions in institutions of higher learning. There is no doubt that sometimes these orders are triggered by righteous indignation and emotional responses.
- The common citizens have discovered that the administration has become so apathetic and non-performing and corruption and criminality so widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention.
- The great contribution of judicial activism in India has been to provide a safety valve in a democracy and a hope that justice is not beyond reach. Judicial activism has come to stay in India and will prosper as long as the judiciary is respected and is not undermined by negative perceptions, which has overtaken upon the executive and the legislature.
- There is concern among the public about lack of transparency in judicial appointments and a sense of increasing unease because of a lack of a credible mechanism to deal with serious complaints against the higher judiciary.
- Law will not be in force until an amendment of the constitution relating to the same matter.
- In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Theory of Eclipse.
- In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void-ab-initio.
- Judicial review is actually adopted in the Indian constitution from the constitution of the United States of America. In the Indian constitution. Judicial Review is dealt under Article 13. Judicial Review actually refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 deals that
- All pre-constitutional laws, after the coming into force of constitution, if in conflict with it in all or some of its provisions then the provisions of constitution will prevail and the provisions of that pre-constitutional.
IMPACT OF THE 42ND AMENDMENT
The 42nd Amendment enacted during the Emergency made far-reaching changes to curtail the powers of the courts and to make the Parliament sovereign. Firstly, the 42nd Amendment stated that no amendment to the Constitution could be questioned in a Court of Law. And “for the removal of the doubts, it is hereby-declared that there shall be no limitation what ever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this constitution.” In this manner, through this Amendment the Supreme Court’s power to judicial review of constitutional amendments was taken away to establish the complete and total sovereignty of Parliament. The Amendment stated that:
- A High Court cannot pronounce invalid any Central law,
- The Supreme Court shall not pronounce a State law as unconstitutional unless a Central law has also been challenged.
Further, the minimum number of judges of the Supreme Court who shall sit to determine the constitutional validity of any Central or State law shall be seven and in the case of High Court, five. It was also stated that a majority of not less than two- thirds of the judges hearing such a case must agree before a law is declared invalid. But after this the 43rdAmendment was passed which restored the pre-emergency position of the Supreme Court’s power of Judicial review over laws passed by state legislatures and Parliament.
- As far as Parliament's sovereignty with regard to amending the Constitution is concerned, there is no change. The power of Parliament to amend the Constitution exists as under the 42nd Amendment.
- The judgment of the Supreme Court in the Minerva Mills case in May 1980 was a setback to the position of unlimited powers claimed by the Parliament to amend any part of Constitution. This judgment recognized only limited powers of the Parliament to amend the Constitution without altering the basic structure.
- In such situations, the Supreme Court or High Court interprets the laws as if they are in conformity with the constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 124, 131, 219, 226 and 246 provide a constitutional bases to the Judicial review in India.
- The Indian Constitution has not recognized the doctrine of separation of powers in its absolute form but the functions of the different organs have been clearly differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ of the functions that essentially belongs to another.
- Though the Constitution has adopted the parliamentary form of government, where the dividing line between the legislature and the executive becomes thin, the theory of separation of powers is still valid.
- The Judiciary plays a very important role as a protector of the constitutional values that the founding fathers have given us. They try to undo the harm that is being done by the legislature and the executive and also they try to provide every citizen what has been promised by the Constitution under the Directive Principles of State Policy.
- In such type of situations Supreme Court or High Court interprets the law as if they are in conformity with constitution or not. If find it not in conformity, they declare it either whole & if possible to separate, then only that much of provision to be void which are inconsistent with that of the Constitution.
- Judicial review in India comprises of three aspects: judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action. The judges of the superior courts have beefy entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it.
- It is they who have to ensure that, the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of functions, transgress constitutional limitations. Thus, judicial review is a highly complex and developing subject.
- Judicial review has its roots long back and its scope and extent varies from case to case. It is considered to be the basic feature of the Constitution.
- The court in its exercise of its power of judicial review would zealously guard the human rights, fundamental rights and the citizens’ rights of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds, which could be expended on building, hospitals, roads and the like, or overseas aid, or compensating victims of crime.
JUDICIAL REFORM IN INDIA
- The institution of judiciary and the rule of law is the essence of modern civilization and democratic governance. It is important that people's faith in judiciary and the rule of law is not only preserved but enhanced as well and simple way to achieve that is by ensuring an effective system of justice delivery.
- For decades judicial system has been crying for reforms as the cheap and speedy justice has been by and large elusive.
- There is a huge pendency of over 2.5 crore cases despite measures to reduce it. Experts have expressed fears that there has been a loss of public confidence in the judiciary, and an increasing resort to lawlessness and violent crime to settle disputes. They feel, that public confidence in the judiciary must be restored immediately, in order to arrest and reverse this negative trend.
- Over the last five decades various legally constituted, government authorities such as the Law Commission of India, Parliamentary Standing Committees, and other government appointed Committees, several benches of the Supreme Court, eminent lawyers and judges, various legal associations/organizations and NGOs have identified problems in the Judicial system and called for addressing them speedily.
- Yet, the effective implementation of many such recommendations is still pending. According to one of the Parliamentary Standing Committee on Home Affairs (2001) almost 50% of the reports of the Law Commissions awaited implementation.
- The poor budgetary support to the judiciary has been alluded to as one of the reasons for non-implementation of judicial reforms. Rs.700 crore allocated to the judiciary during the 10th Plan (2002-2007) constituted 0,078 percent of the total plan outlay of Rs. 8,93,183 crore. During the Ninth Plan the allocation was even less, only 0.071 percent.
- It has been observed that such meager allocations are too inadequate to meet the requirements of the judiciary, (t is said that India spends just 0.2 percent of the gross national product on judiciary. According to the first National Judicial Pay Commission, all states but one have been providing less than 1% of their respective budgets for subordinate judiciary which is afflicted with huge pendency.
- But, lack of resources cannot be a reason for denying justice or any other fundamental right to most citizens, especially the disadvantaged sections, who “have limited access to justice, due to unclear laws and high costs that act as effective barriers”.
- Observing that ‘justice delayed is justice denied’ in P. Ramachandra Rao v. State of Karnataka (2002), a Constitution Bench of the Supreme Court reiterated from Hussainara Khatoon case that “It is the constitutional obligation of the State to dispense speedy justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21,19 and 14 and the preamble of the Constitution as also from the directive principles of State policy.
- It is high time that the Union of India and the various States realize their constitutional obligation and do something “concrete in the direction of strengthening the justice delivery system.”
- Other major factors include neglect in improving judicial infrastructure over the past decades, inordinate delays in filling up vacancies of judges and very low population” to-judge ratio that require immediate attention to improve the performance of judiciary.
- The 120th law Commission Report had pointed out that India’s population-to- Judge ratio is one of the lowest in the world with only 10 judges for every million of its population as compared to about 150 judges for the same number in the United States and Britain. According to the ‘All India Judges’ Association’, the Supreme Court had directed the government to increase the judge strength to 50 judges per 10 lakh population by 2007 in a phased manner, which has not been fulfilled so far. Even for filling up of vacancies of approved strength of judges much needs to be done.
- It is observed that 25 percent of the judge positions remain vacant due to procedural delays. The sanctioned strength of judges of the High Courts was 886 and working strength was 608 as on 6th January 2009 leaving 278 vacancies. Similarly, with 11,767 working strength of Subordinate Judges there were 2710 vacancies, on March 1, 2007.
- The E-enabling will help the courts to function more efficiently and speed up the disposal of cases. It would also network these courts with the higher courts and thus facilitate greater accountability.
- Another centrally sponsored scheme for development of infrastructure facilities including setting up of court buildings and residential accommodation for the judicial officers is under operation since 1993-1994. Rs. 286.19 crore were released to the States from 2006-07 to 2008-09 under this scheme. The outlay for the judiciary during the 11th Plan has been sought on the basis a perspective plan having projections of such requirements over a ten year period.
- Meanwhile, the disposal of cases can be increased by greater use of the existing infrastructure with courts having more than one shift. Gujarat is one of the states where evening courts are functioning with appreciable results.
- Fast Track Courts (FTC) recommended by 11th Finance Commission have also proved effective in addressing pendency. Keeping this in mind the government has already extended the term of 1,562 FT courts operating at sessions' level up to 31st March 2010 by providing central support to the states. As per union Law Ministry, these courts have out of 28.49 lakh transferred cases to them disposed off 21.83 lakh cases.
- The Central Government proposes to set up more than five thousand Gram Nyayalayas at intermediate panchayat levels under the Gram Nyayalayas Act, 2008 in order to bring justice delivery system at the door step of rural population. The procedure to be followed by these courts has been kept simple and flexible so that these cases can be heard and disposed of within 90 days’ period.
- Recourse to Alternate Dispute Redressal (ADR) mechanism can greatly help in reducing pendency of cases through arbitration, negotiations, conciliation and mediation. In the United States and many other countries, ADR as dispute resolving mechanism has been highly successful.
- India already has Arbitration Conciliation Act 1996 and the Code of Civil Procedure has also been amended. However, the measure suffers from grossly inadequate number of trained mediators and conciliators. Both judicial officers and lawyers need to be trained with a view to grow alternate system into the mainstream of justice.
- The government will have to take an overall view of procedural laws that allow endless interlocutory appeals and the role of ‘delay lawyers’ in posing impediments to resolve cases. Despite the Criminal Procedure Code (Amendment Act) 2002, bringing change in the procedure in suits and civil proceedings by way of reducing delays, the situation remains far from satisfactory.
- The issue of frivolous litigation will also have to be addressed and one of the ways could be by imposing heavy costs. The police investigation system needs to be strengthened and modernized that would decrease load on judiciary.
- While having a holistic view of all the intricacies and nuances of the justice delivery system, its present pitfalls and fault lines will have to be considered to ensure transparency and accountability of the judicial system.
NAXALISM - PERCEPTION AND REALITY
- Addressing the senior police officers of the country on September 15, Prime Minister Manmohan Singh reiterated that left-wing extremism is perhaps “the gravest internal security threat our country faces”, and deplored that “we have not achieved as much success as we would have liked in containing this menace”.
- The Naxal influence has indeed spread over a huge geographical area. According to the Home Minister's own statement, various Naxal group have pockets of influence in 20 states across the country, and over 2000 police station areas in 223 districts of these states are partially or substantially affected by the menace.
- The states particularly affected are Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Maharashtra, Orissa, Uttar Pradesh, West Bengal, Kerala, Karnataka, Tamil Nadu, and Haryana.
- Naxal violence has been on a high trajectory. There have been violent incidents in about 400 police station areas of 90 districts in 13 states. There were, in 2008, a total of 1591 incidents of Naxal violence resulting in 721 killings.
- This year, there have already been (till August 27) 1405 incidents of Naxal violence resulting in the death of 580 persons. Casualties among security forces personnel have been quite high. Altogether, 231 security forces personnel lost their lives in Naxal violence in 2008, while 270 (Oct 15) personnel have already lost their lives this year so far.
- The Ninth Congress of the People’s War Group held in 2007 “reaffirmed the general line of New Democratic Revolution with agrarian revolution as its axis and protracted People’s war as the path of the Indian revolution”, and resolved to “advance the people's war throughout the country, further strengthen the people's army, deepen the mass base of the party and wage a broad-based militant mass movement against the neo-liberal policies of globalization, liberalization, privatization.”
- Naxal activities have since then been on a canter. The expansion of Naxal influence is also to be attributed to their plan to take the battle to new fields. This was spelled out by the party’s politbureau in one of its policy documents where it was mentioned that “we have to further aggravate the situation and create more difficulties to the enemy forces by expanding our guerrilla war to new areas on the one hand and intensifying the mass resistance in the existing areas so as the disperse the enemy forces over a sufficiently wider area; hence the foremost task in every state is to intensify the war in their respective states while in areas of intense enemy repression there is need to expand the area of struggle by proper planning by the concerned committees; tactical counter-offensives should be stepped up and also taken up in new areas so as to divert a section of the enemy forces from attacking our guerrilla bases and organs of political power.”
- While it is true that the Naxal movement is on a high trajectory and that its arc of violence is expanding, it is also true that there has been considerable dilution in its ideology. The present generation of Naxal leaders are obsessed with the idea of capturing power with the barrel of the gun, and the success of Maoists in Nepal seems to have turned their head.
- They do not realise that the accretion in their influence and support has not been so much due to the relevance or even appeal of their ideology as due to the inefficiency and corruption of the government which has generally failed to deliver, particularly in the far flung remote areas. An analysis of some of the basic concepts would bring this out.
The Naxais blame the government for poverty, for poor development, and for the absence of basic amenities in the interior areas. And yet, ironically they have adopted an anti-development posture. According to a report, the Naxais have, during the period January 2006 to June 2009, attacked 316 economic targets which gave employment to thousands of people including the tribals in different states, particularly those falling in the so called Red Corridor. Home Ministry statistics show the following numbers of attacks on economic targets during the last few years:
56 (till June)
The following establishments were particularly targeted:
Mines, Steel Plants
- In a document Tasks Ahead, the party says that “the people should be educated as to how the entire region is being handed over to the comprador big business houses like the Tatas in Lohandiguda, Essar in Dhurli, NMDC’s proposed steel plants in Nagarnaar and Dilimili, Raoghat mines and the Bodhghat projects.
- The conspiracy should be exposed and a broad-based movement built against displacement.” The land acquisition for Tata’s five million tonne steel project at Jagdalpur has been hampered by the Maoists who have infiltrated the farmers’ outfit seeking better payment and resisting land acquisition.
- Officials allege that the Naxals do not want of any economic activity in the areas of their influence because they feel that once the administration fills up the gaps in infrastructure, their relevance and appeal would diminish.
- Some intellectuals argue that the Naxal opposition stems from the fact that they want more inclusive development. They accuse the government of usurping land in tribal areas with a view to obliging big business houses, who are encouraged to set up economic zones and given concessions for the purpose.
- There may be some truth in the argument, but it is difficult to imagine how the development process could be accelerated without acquiring land somewhere. There could be difference of opinion about the selection of site, but places for setting up big plants will have to be earmarked.
Nexus with Insurgents
- The Naxals’ nexus with the insurgent organizations has further exposed them. There are indications that the PW cadres received training in the handling of weapons and IEDs from some ex-LTTE cadres.
- Besides, they have entente cordiale with the National Socialist Council of Nagaland (IM). Some batches of Naxals have also received arms training from the United Liberation Front of Assam. Besides, the Communist Party of India (Maoist) has fraternal relations with the Communist Party of Nepal.
- According to a recent report, the ISI is trying to reach out to the Naxals, The Lashkar-e- Toiba had directed its operative, Mohammed Umer Madani, to recruit Maoists and help them with money and firearms.
- Madani admitted before the police that his plan included giving preliminary training to the jehadis recruited from different parts of India in Maoist strongholds and then sending them to Pakistan for further training.
- Extortion is the biggest source of revenue for the Naxals. They extort money from Industrialists, businessmen, contractors, government officers and any other function- aries operating in the areas where they operate.
- A major steel company is reported to have been making regular payments to the Naxals, though recently the Naxals attacked it and torched their vehicles when they refused to ferry arms on their planes. According to a confessional statement, the Naxals are extorting Rs. 2 crore from the NMDC every year.
- There are reports that Naxals have started encouraging the cultivation of poppy in certain areas of Bihar and Jharkhand. This is a very ominous development.
- The greatest source of revenue for the Taliban, as is known, is the cultivation of poppy and the subsequent sale of heroin which ultimately finds its way into the markets of Europe and USA.
Boycott of Elections
- The Naxals’ objective is to bring about a Democratic Revolution in the country. India, according to them is a “semi-colonial and semi-feudal country” and the Indian State is completely in the hands of “big landlords and comprador-bureaucrat capitalists”.
- The Naxals methods are however most undemocratic. They always call upon the people to boycott the elections. There are instances of people having their fingers chopped off for having exercised their franchise.
- Polling parties are attacked and occasionally the ballot boxes are looted. It is another matter that people still vote; Gadchiroli recorded over 70% turnout in the recent Assembly elections despite the Maoists’ threats.
- The Naxals have the support of a section of the intelligentsia. These mostly include teachers, students and writers. Chhatradhar Mahto, the tribal leader of Lalgarh who was arrested by the West Bengal police, reportedly disclosed the names of 20 Kolkata based University students and three of their professors who have links with the Naxals. According to Mahto, the Naxals occasionally consulted the professors and even took their assistance in drafting policy documents.
- Human Rights groups have a soft corner for the Naxals. There could be no objection to that. But the problem is their blinkered view of the total picture. They project police actions in the most lurid colours but are blind to the excesses and atrocities of the Naxals. it has been rightly said that “our civil society must give up this dangerous flirtation with the ideologies of hatred and murder”
Option before the Government
- The trajectory of Naxal violence has left the government with no option but to undertake comprehensive police operations against them. Unfortunately, certain sections, in their keenness to sensationalise the developments, are painting the government response in gory colours. The proposed action is being described as “war” on the Naxals while some say that it is the beginning of a “civil war” in the country.
- There is no question of a war being waged, The point to be understood is that no government worth the name can remain a mute spectator to its authority and write over a territorial area being challenged. It has to take action against the elements challenging its authority.
- Be sides, how can you tolerate a group which is attacking police stations, ambushing patrols, extorting money, blowing up schools, disrupting the construction of roads, demolishing communication towers, etc. The activities of such a group have to be put down.
- There is no question of a civil war either. it is not that two groups of the civilian population are fighting against each other. It is a confrontation between the forces of law and order on the one hand and the People’s Guerrilla Liberation Army on the other.
- This is, however, not to absolve the government of its blame - its inefficiency, incompetence, corruption, and failure to alleviate poverty, provide gainful employment and minimise the alienation of land from the tribals.
- It is a sad commentary on our planning process that, as admitted by the Planning Commission in the Eleventh Five Year Plan document, “sixty years after independence, over a quarter of our population still remains poor”. It is distressing that the progress on land reforms has been “dismal”. It is also a matter of shame that, as observed by an Expert Group, the tribals of the country are feeling “totally exhausted, impoverished, and traumatized”.
- Poor governance, it must be acknowledged, is at the root of the Naxal problem, and the government is entirely to blame for this. There is adequate justification for the planned police offensive against the Naxals.
- However, there is no justification for the socioeconomic malaise which still afflicts the country. Unless these factors - of poverty, land reforms, unemployment, corruption and alienation of tribals - are addressed, police action would prove to be a temporary palliative only.
- In any case, it is time that the Naxals are exposed for what they are. They claim to be champions of the poor and yet have no compunctions in annihilating people from that section of society. They claim to be protagonists of the tribals and yet they antagonised the tribals of Bastar by interfering with their social customs and cultural practices.
- They shed tears for the poorest of the poor and yet sabotage the schemes to alleviate their poverty. They want to bring about a democratic revolution in the country and yet try to disrupt every election. They claim to be patriots and yet have a nexus with the anti- national forces. The intellectuals' support for the Naxals has a romantic touch about it. The reality is quite different.