Legislature frames laws. Who forms the legislature? It is the people’s representatives. People send their representatives to the Parliament and the Assemblies. Like the Rajya Sabha, the members in the upper houses in the states are also indirectly chosen representatives of the people. Thus our representatives frame laws in the Parliament and the Assemblies as per the need of the time.
There are certain procedures for framing laws. First, the concerned department will have to prepare the draft of the bill by taking all relevant things into consideration. Then the draft is examined by the law department. Once it is okayed by them the bill is submitted to the Cabinet for its nod. Thereafter the bill is placed in the house where it is debated and discussed.
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At times the bill can also be sent to various house committees for their comments. Finally, when the bill is approved by the house, it is sent for the approval of the governor in the case of the states and to the President in the case of the Centre for his approval. With their signatures in it, the bill becomes an act.
But after all this, if there arises any controversy regarding the act, the final authority to settle it rests with the higher judiciary, mainly the Supreme Court of India, the highest judicial authority in the country. This is the established norm.
But this very thing was strongly criticised by the Vice-president, Jagdeep Dhankhar. He said that Parliament is the conference of people’s representatives. It is the supreme authority. Once an act is passed by the parliament it should reign. How can it be challenged in court? Yes, this is true. In a democracy, people’s say is the final. They are the supreme authority. But nothing hovers in the air. There is a context for everything.
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We very well remember that during the Emergency Indira Gandhi also spoke of a ‘committed Judiciary’. What happened then is also happening now. That is why the Vice-president and Union law minister Kiren Rijiju are saying what they are saying. Rijiju has been regularly criticising the collegium system for appointing judges. He is saying things in a manner which is not respectful to the Supreme Court. For this, he was publicly reprimanded by the eminent advocate Harish Salve.
What did happen during the Emergency? That was the time when the highest court of the country compromised its authority and autonomy. There was a moving chapter about it from 168 to 172 pages in ‘Before Memory Fades’, the autobiography of eminent jurist, Fali S Nariman. That was a time when a large number of people were jailed for opposing Emergency under the Maintenance of Internal Security Act (MISA) act. Could the people who were arrested under MISA approach the court to know if they were arrested legally or illegally?
Nine high courts of the country including the high courts of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan opined that legal assistance was available for the people who were detained under the MISA. Then the states and the Central Government went to the Supreme Court against this order. The Supreme Court formed a five-member Bench to examine it and the Bench ruled that no such remedy was available for them while the Emergency was on. But, there was a dissenting voice among them. That was of Justice Khanna.
He said, “Life and liberty are not conferred by any constitution. They inhere in men and women as human beings.” He was indeed true to the spirit of justice! For this bold stand, despite being the senior most judge of the Supreme Court he was not made the Chief Justice of India when his time came. He was simply superseded and M H Beg was made the CJI. Protesting against this, Justice Khanna heroically resigned from the Supreme Court. That was the story of pride and ignominy in the time of Indira Gandhi.
There was a case against Indira Gandhi concerning her electoral win in Allahabad High Court. The verdict of the case went against her. This created a tremor all over the country. She immediately appealed against it in the Supreme Court. But her over-enthusiastic supporters went a step ahead and advised her to amend the constitution and bring in an act by amending Constitution to protect the prime minister from any court judgment in the event of any dispute concerning her election.
It was provided in the amendment that in case of any such dispute only parliament was authorised to deal with it. This horrendous amendment was easily passed by Indira Gandhi’s government as she had an absolute majority in both houses of the parliament. Fortunately, this 39th amendment to the constitution was summarily rejected by the Supreme Court of India. This amendment was rejected on the basis of the basic structure theory of the Constitution. The court opined that ‘judicial review’ and ‘free and fare elections’ were a fundamental part of the Constitution beyond the reach of amending power.
Though the Constitution does not say so, it was inferred by the Supreme Court from the silence of the Constitution. The amending of the Constitution is the call of the time. That is why the Constitution is being amended. But in the name of amending the Constitution, it must not be abrogated. We cannot amend the principles and values enshrined in the preamble to the Constitution and we also cannot do away with the basic characteristics of the Constitution.
We cannot change these because the Constitution of India was born from the freedom movement of India. The Constitution of India reflected the aspirations of the freedom movement. India as a country was born with those aspirations and objectives as American Constitution was born as a result of the American Revolution. The American Constitution was born in the year 1789 and is still continuing. The basic structure theory of the Constitution was framed by Golaknath’s (1967) and Keshavananda( 1973) judgments of the Supreme Court of India.
Eminent jurist Durga Das Basu made a significant comment on the basic structure theory of the Constitution. He said, “The doctrine of the basic features had been invented by the Supreme Court in order to shield the Constitution from frequent and multiple amendments by a majoritarian government.” This is the thing. We should remember that when Indira Gandhi frequently amended the Constitution she had an overwhelming majority in the parliament. She had 360 MPs supporting her at the time.
Now that the Vice-president and law minister are criticising the judiciary because they are also inspired by the absolute majority of the BJP in the parliament. Perhaps the BJP has more than 306 MPs in the parliament. The people’s representatives’ notion was invoked in the time of Gandhi and the same is invoked now in Modi’s time. But, we have also been witnessing how this parliamentary majority has eroded the democratic institutions in our country and how it has made parliament totally dysfunctional. For appointing judges in the higher judiciary the BJP government replaced the collegium system with National Judicial Appointment Commission. But NJAC was struck down by the Supreme Court by reintroducing the collegium system.
Here let us see what Fali S Nariman said in his book “God Save The Hon’ble Supreme Court”. He said, “For over seventy years we have been working a constitution that is federal in nature with allocated subjects of legislation separately and exclusively given to the states and to the Union; there is also a chapter on Fundamental Rights. And all laws and all executive action inconsistent with these important features are expressly declared to be ‘void’. Whenever a controversy arises, then some authority would have to be the final arbiter. Under the Indian Constitution, that arbiter is the country’s highest court.”
So the Vice-president and the law minister are speaking in vain. The Supreme Court of India is doing what exactly they are expected to do. The present circumstances in the country demand that the Supreme Court should be more vociferous and it should guard its autonomy jealousy.