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When the courts legislate and execute

DOCTORINE OF BASIC STRUCTURE: The Judiciary curtailed autocratic politics by striking down Article 329A during the Emergency. Picture shows Jayaprakash Narayan leading a protest against the Emergency.

DOCTORINE OF BASIC STRUCTURE: The Judiciary curtailed autocratic politics by striking down Article 329A during the Emergency. Picture shows Jayaprakash Narayan leading a protest against the Emergency.

Our fundamental rights are the conscience of the Constitution. Every legal right stems from our ability to retain the integrity and the structure of our Constitution

In 1973, a Bench comprising 13 Supreme Court judges ruled by a majority that Article 368 of the Constitution “does not enable Parliament to alter the basic structure or framework of the Constitution.” The Court ruled what has come to be known as “the basic structure” doctrine — a judicial principle that the Indian Constitution has certain “basic features” that cannot be altered or destroyed through amendments by Parliament. Paramount among these are the fundamental rights guarenteed by the Constitution.

Only two years later, the Allahabad High Court found the then Prime Minister Indira Gandhi guilty of electoral malpractices. Justice Jagmohan Lal Sinha invalidated Mrs. Gandhi’s win and barred her from holding elected office for six years. The decision caused a political crisis in India that led to the imposition of the Emergency by Mrs. Gandhi’s government from 1975 to 1977.
The best of times
During the Emergency, Mrs. Gandhi altered the election law retroactively by the 39th amendment to the Constitution. Article 329A was inserted to void the Allahabad judgment. The retroactive, undemocratic, and politically motivated legislative enactment validated an election. The amendment secured her position and prevented her removal from Indian politics. Later the enactment was successfully challenged in the light of the 1973 ruling and Article 329A was struck down. The Judiciary curtailed autocratic politics — a stitch in time saved nine.
Our fundamental rights are the conscience of the Constitution. This right, and every other legal right, stems from our ability to retain the integrity and the structure of our Constitution.
There is a hard learnt, intellectual history to this legal inheritance. The principal of the basic structure of the Constitution is enshrined in Article 79 (3) of the Basic Law for the Federal Republic of Germany. The German constitution was drafted between 1948-49, in the immediate shadow of its Nazi past. During the drafting sessions, the Weimar constitution came under immense scrutiny by German jurists and scholars, who investigated the document at great length. The Constitution’s broad powers to suspend civil liberties, coupled with an insufficient system of checks and balances, presented a structural opportunity for Adolf Hitler to seize power and preside upon an authoritarian democracy.
In the 19th century, there were many who mocked Montesquieu for his fear of political power and for his cautiously articulated theory of separation of powers. The doctrine of separation of powers took a particular view of men and power. It assumed that power corrupts. In the Constitutional Assembly Debates, while discussing the fundamental rights, Dr. Ambedkar expressed similar sentiments. “I myself cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting life and liberties of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court could examine the laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices can be trusted to determine which law is good and which law is bad.” Separation of powers is indispensable because under the Constitution, power divides itself so that reason can rule.
And the worst of times
In January this year, in the matter of Judicial review of Pardon power, the Supreme court inShatrughan Chauhan & Anr. vs Union Of India & Ors. overstepped its constitutional power and duty and exercised the sovereign power of clemency, which it never possessed. The three-judge Bench, in its unprecedented authority, commuted a sentence of death to life for 15 persons on the singular ground of delay. The decision egregiously disregarded previous judgments laid down by the five-judge Bench of the Supreme Court. The Supreme Court has the appellate power to reduce a death penalty in regular appeals. However, it has never possessed such powers to exercise the remission or commutation while exercising the judicial review of clemency power.
Protection of our fundamental rights remains paramount and the Judiciary can and must curb acts of excess, and ensure checks and balances. However, the protection of our fundamental rights itself never empowered the Supreme Court to either legislate or to execute. The decision in the Shatrughan Chauhan case has been widely and wrongly heralded as a decision in support of human rights, while squarely forgetting the Judiciary’s infringement of the cardinal principles of separation of powers. The Judiciary cannot revolt against the Constitution, but only on its behalf.
The errors in the Shatrughan Chauhan decision brought forward the case of three convicts — Murugan, Perarivalan and Santhan — in the Rajiv Gandhi assassination case before the consideration of the Supreme Court. These commutations were ordered on the same grounds as Shatrughan Chauhan & Anr. vs Union Of India & Ors. After commuting the death sentence to life imprisonment for these convicts, the court rendered an unsolicited legal opinion that was neither pleaded nor argued by the petitioners (para 31 of the judgment).
The judgment erroneously declared the power of the State government under the Criminal Procedure Code, to exercise remission of “life sentence” to “no sentence,” and enabled the release of the convicts. In Krishta Goud & Bhoomaiah vs State of Andhra, the Supreme Court Bench presided over by Justice V.R. Krishna Iyer stated with clarity: “As Judges, we cannot rewrite the law whatever our views of urgent reforms, as citizens, may be.” When the State government’s decision was challenged by the Union of India in the Rajiv Gandhi assassination case, P. Sathasivam, Chief Justice of India stated: “We are responsible for this problem. We will solve it.”
The Tamil Nadu government taking political advantage of the “Tamil sentiments” in view of the coming election, exercised the remission power purely for political consideration, and demanded that the Centre act within 72 hours. Electoral politicking that appeals directly to mass sentiments, ethnonational affinities and sympathies, without institutional and social checks and balances, erodes the very foundation of our rights. The Tamil Nadu government’s decision to release the prisoners might create short term electoral victory, but it will further entrench a culture that places politics and emotional appeasement above governance and the rule of law.
In a country governed by a written Constitution, the democratic right flows from the attribute of constitutional sovereignty. We cannot claim our fundamental right or any other legal rights, unless we retain the structure of our sovereignty. In the 1970s, when faced with gross violations of the country’s democratic structures, the Supreme Court stepped in, limiting the power of both the Legislature and Executive. Our Constitution is our act of revolution and the Judiciary its protector. Today when the same Judiciary oversteps its limits, it is indispensable that the decision is corrected, reviewed and reversed by a larger Bench.


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