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Limits of power — A Tribune debate Profile |
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Musharraf tramples on judicial independence On Record
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Limits of power — A Tribune debate Balancing diverse priorities of the Constitution by Ashwani Kumar THE limits of the power of judicial review is a recurring theme in the evolution of our constitutional jurisprudence. In some of its celebrated judgements, the apex court has defined the contours of sovereign power as distributed amongst the three branches of government - the legislature, the executive and the judiciary. In recent days, the debate has been brought into sharper focus following views expressed by scholars, parliamentarians and judges on the question of reservations for the OBCs in educational institutions. These reflections are in continuation of the debate. The Indian Constitution which embodies republican aspirations propounds the philosophy of separation of powers emanating from a distrust of concentration of power in any one organ of the state. Within their defined spheres and subject to express limitations including those sanctified by the hallowed conventions of the Constitution, each branch of government has a wide range of freedom to act. The question then is: Can the will of the people reflected in the passage of a unanimously approved parliamentary enactment be questioned by the Supreme Court in the absence of any doubt as to Parliament’s legislative competence to pass the law? Also, can the judicial power of review of legislation be exercised to usurp Parliament’s primacy in its lawmaking function? To carry the debate forward, the fundamental assumptions and irrefutable basis of our constitutional scheme need to be reiterated. First, the people have given unto themselves a written Constitution that embodies and defines the diffusion of sovereign power. Secondly, the power of judicial review is a part of the basic structure of the Constitution, unalterable even by a constitution amendment as affirmed by the Supreme Court in Keshvananda Bharti. And thirdly, representative democracy as an expression of the people’s will speaking through their elected representatives is a non-negotiable premise of our republican charter which itself is the product of an exercise of the unbroken sovereign power. Two sides of the debate must thus be tested on the basis of these sacrosanct assumptions which define our constitutional democracy. It is argued on behalf of those expounding the primacy of the popular will as reflected in an act of Parliament, that the people having spoken through their elected representatives cannot be stalled by courts since that would be a negation of democracy and the legislative supremacy in the field of lawmaking. Pertinent questions continue to be raised in the background of current political realities, our historical past and a deep-rooted commitment to constitutional democracy. Those who distrust the power of judicial veto continue to ask: Whether it is wise to subordinate the legislative process representing “a wide margin of considerations which address themselves only to the practical judgement of a legislative body” to judicial fiat? And why should the personal preferences and prejudices of judges be allowed to be read into the Constitution in the garb of interpretation since the myth that judges only interpret and do not make law has since long been demolished by the “robed brethren” themselves ? Is it not that judicial review involves an exercise of political power in as much as it involves the "sovereign prerogative of choice" but without commensurate political responsibility? Can a judge be truly detached and yet keep a “libertarian or a proprietarian” thumb on the scales of justice? Can guardianship of democratic power be synonymous with representative democracy itself? And why should the courts rather than the other two branches be the exclusive arbiter of the Constitution? On the other hand, there is a compelling argument, i.e. that the power of judicial review entrusted to our superior courts in various provisions of the Constitution itself is as much by the command of the people. Defenders of this view argue that judicial scrutiny of the validity of legislation is a necessary protection against the oppression of transient majorities, that the judges do not check the people, the Constitution does and since the Constitution itself is popularly ratified, there is nothing undemocratic in the power of judicial review. Chief Justice Marshall’s reminder that when courts invalidate as unconstitutional an act of a legislative body they do so by the command of the people (Marbury Vs. Madison) remains the much-invoked basis of judicial power. The justification of judicial review articulated by the American statesman Alexander Hamilton in the Federalist No. 78, finds its echo in the current debate. Unanimity or consensus in legislation as the sole basis of a coherent moral vision binding on all, it is argued, is to be rejected in the face of explicit constitutional limitations which are intended to serve as a bulwark against temporary majorities, particularly, when written constitutions seek to harmonise the principle of popular choice with inherent rights. These questions have acquired a pronounced resonance in our transforming society and evolving democracy. The way we approach and address these issues will define the quality of our polity. For these to be addressed for posterity consistent with the first principles of republican democracy, we need men of wisdom to work our institutions in harmony so that the primary control of government remains with the people while judiciary fulfills the important role as an “auxiliary precaution” against the excesses of majoritarian democracy. In this sense, judicial review will be seen as essential to the promise of democracy and not antithetical thereto - a sure guarantee of its longevity. It has been the glory of our democracy in action that consistent with the mood of the people we have been able to maintain harmony between different braches of government in a manner that have thus far ensured the resilience of the institutions of a liberal democracy. By way of a caveat however, one may add that in the fulfillment of its function to “define values and proclaim principles”, the apex court as the guardian of democratic morality will doubtless remember that the exercise of constitutional power is sustained in the final analysis by the intellectual integrity, independence and fearlessness of judges. While balancing the diverse priorities of the Constitution and recognising the need to ensure a “living constitution”, judges may reflect on thinker Herman Finer’s words, who spoke of the constitutional order thus: “The constitution”, he said, “is an autobiography of the power relationship, concrete and spiritual in any human group, and like all autobiographies it includes some fancies which are not lived up to, and excludes vices which are lived only too well”.
The writer is the Union Minister of State for Industry, New Delhi. Previous articles in the debate on “Limits of power” appeared on
April 12 (Fali S. Nariman,
April 13 (Rajeev Dhawan),
April 16 (Anil Divan) and
April 21 (P.P. Rao)
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Profile While detesting his brother’s rise, Azhagiri carved out his fiefdom in Madurai and surrounding districts. He would extract his pound of flesh in every election. He managed to get tickets for some of his loyalists. Whenever the DMK leadership rebuffed him, he fielded rebel candidates. In 2001 election, he fielded several candidates defeating six of the party’s official nominees. Whenever DMK ruled the state, his supporters thrived. He became the most feared name in Madurai. When the Tamil daily, Dinakaran, published the controversial survey — who could be the political heir of Karunanidhi — Azhagiri has reason to fret and
fume. The survey projecting that 70 per cent voted for Stalin and only two
per cent favoured Azhagiri, apparently, looked politically motivated. Itwas also telecast by the newspaper’s TV channel and Sun TV. The Dinakaran was recently purchased by Kalanidhi Maran, elder brother of Why did Karunanidhi groom Stalin, now in early fifties, to be his successor? He was convinced that his younger son is the smartest of other three sons , having gone through the rough and tumble of politics. Stalin stood by his father like a rock when the DMK government was dismissed after the proclamation of Emergency in 1975. The eldest, M.K. Sethu, crossed over to the AIADMK and even campaigned against his father and Azhagiri was not so committed as Stalin. At times Azahagiri too opposed his father. Stalin upstaged Azhagiri in a family coup and, strangely, he did this with Karunanidhi’s blessings. He disowned his second son through a statement published in the party’s organ, Murasoli. Stalin’s prestige and entire political career was put at stake when a city
court directed the Tamil Nadu police to probe the allegation against him
that as Chennai Mayor, he had amassed unaccounted wealth. Stalin sprang a surprise by appearing before the judge un-summoned. He requested him to order “any suitable” probe into the allegation against him, contending that if the probe was not instituted he would be denied the opportunity to clear his name. The charges were subsequently found to be baseless and the judge dismissed the case. He was then reported to have observed “Tamil Nadu needs a leader like Stalin”. The family feud has hit Maran brothers also, said to be close to Karunanidhi. Union Communication and IT Minister Dayanidhi Maran is usually seen helping his granduncle, but after the Madurai violence he was conspicuous by his absence. If Karunanidhi is not able to complete the process of succession during his lifetime, Stalin may later be embroiled in bitter family battle over the succession issue. Watch out the next move of the DMK’s grand old
man. |
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Wit of the WEEK —Justice Arijit Pasayat, the Supreme Court Judge, while hearing
the OBC reservation case There is a new trend in the courts these days. If neither the law nor facts are in favour of an advocate, he hammers the advocate of the opponent. — Harish Salve, counsel for anti-quota petitioners’ reply to
Justice Pasayat’s observation The Election Commission’s constitutional mandate is to conduct free and fair elections. It is unfair to blame or praise the Election Commission for any political party’s victory or defeat in the elections. — Chief Election Commissioner
N. Gopalaswami Islam doesn’t have a monopoly on sexism. Alas, it’s a hallmark of virtually all societies. We need to resurrect in the Muslim community compassion, love, tolerance, social justice, and women’s rights. And we have been able to make a difference, global and personal. — Asra Q. Nomani, author of Standing Alone in Mecca I always touched upon issues which have been close to the heart of the people. Though I never wrote poetry with that intention, it somehow always reflected the situation on the ground as any such work ought to. — Rehman Rahi, Kashmiri poet and
recipient of the Jnanpeeth award I had no problem playing an older woman on the small screen sitcom Virrudh. I don’t wish to be portrayed as a grandmother but growing by 20 odd years is fine by me. — Actor Zarina Wahab who shot to fame with her roles in films like
Chitchor and Gharonda Democracy is fragile and beautiful like the glass vase. If we ignore one crack today, there would be more tomorrow. — Frank Pavloff, French writer Tailpiece: I was working Saturdays at a Gucci store in London. I lasted only two weeks in the job, but I managed to sell some very expensive bags to the Arabs. I decided that for each bag that I sold in the store, I would buy one for myself. Today I have some 120 bags or
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Musharraf tramples on judicial independence Lawyers and judges of Pakistan are a valiant and courageous lot. They deserved a hearty accolade of the world community for taking a firm and resolute stand against an extreme executive onslaught on judicial independence. We in India have a deep sense of admiration for them and solidarity with them. The suspension of the Chief Justice of Pakistan because he was questioning the despotic executive disappearances was a crude and frontal attack on the judiciary. The mistreatment of the Chief Justice was meant to demean and demoralise an independent head of the embattled judiciary because he was not willing to be a lackey conniving and conspiring with the military regime in the blatant and persistent violation of civil and political rights. An intolerant executive turned upon him in wanton retaliation and resorted to his summary suspension. Was it the President or the Prime Minister who was guilty of the dark deed? Did they act jointly and conspiratorially? These misdemeanours are inevitable in a regime that is punch drunk with power and in a country which has no constitution worth the name. The absence of a sturdy modern constitution is the source of many ills and evils in Pakistan. Dictators, martial law administrators and generals who grabbed power by military might and have been keen to retrain it by hook or by crook have consistently avoided the adoption and promulgation of a proper constitution in Pakistan. The idea of a constitution has been anathema to them for it would call them and their waywardness to account. In the nature of things, a constitution brings in its train the rule of law, a measure of transparency and a degree of accountability. No wonder, constitutional guarantees of human rights and provisions for good and balanced governance are regarded as their own nemesis by dictators and wheelers-dealers. The absence of a modern constitution inevitably leads to a violation of universally recognised norms of judicial independence. The suspension and mistreatment of the incumbent Chief Justice was to humiliate and harass him and to force him into subservience, a tactic to which he did not succumb. And that is why the subterfuge of a hearing before a pliable Supreme Judicial Council was resorted to. The court has stayed the hearing but only to refer it to the full court without excluding the two judges to whom the Chief Justice has objected. One hopes that the two judges will excuse themselves. Looking at it from the distance of another country, I thought the court should have ideally quashed the suspension based on footling grounds without countenancing the frame-up and the pretensions. All that we the people of India, more particularly, the community of lawyers and judges in India and the media can do is to express our profound concern over the frame-up and articulate our sympathy and solidarity. There are those who believe that it is best to keep our counsels to ourselves and to refrain from expressing any opinion in sympathy or support of the sacked Chief Justice of Pakistan. Their argument is that Indian sympathy and support will only create a prejudice against them in Pakistan. The argument is entirely misconceived and misplaced. We are bound to speak on an issue of this nature with utmost goodwill for the people of Pakistan and for the community of lawyers and judges in Pakistan who are battling an arrogant autocracy lest they should feel let down in their hour of critical need for moral support. We are a part of world public opinion and we must speak because silence is culpable when out duty is to speak up in sincere solidarity with the people of Pakistan. Nor is such a matter of executive interference with the independence of the judiciary a matter of the exclusive domestic jurisdiction of Pakistan. That doctrine has long been dead as a dodo. It has been discredited and banished in blatant cases of human rights violations. The independence of judges is not merely a right and privilege of judges. It is the vested right of civil society. In the judicial crisis caused by the treatment of Chief Justice Iftikar Mohammad Chaudhry, what is at stake is not only the Chief Justice but the rights of the civil society in Pakistan in the face of a willful intrigue of which Pervez Musharraf appears to have been the principal author. Indeed it seems it is one of his rope tricks for survival. The crisis in Pakistan is symptomatic of the labour pains of the civil society in Pakistan and the values of governance struggling to be born. The battle for the Constitution and for the independence of judge is essentially a battle for freedom, democracy and rule of law. It is a battle which has to be fought, sustained and won by the people of Pakistan. But the world will not be and cannot be an indifferent and passive spectator. It concerns us all, involves us all. The duty we owe to the people of Pakistan is to support their struggle in every forum and to wish them well, to bring our views and perceptions to the attention of the world community. The UN Human Rights agencies ought to take up the issue suo motu and to stand up for the people of Pakistan rather than its intriguing rulers. Nations and governments friendly to Pakistan must back the people and not the time servers and intriguers even if Pervez Musharraf’s dream of remaining in the President’s palace with the support of Benazir Bhutto now turns into a nightmare of ouster from power. Will the USA remain a prisoner of its perception on the indispensability of Pervez Musharraf? That is a 64 dollar question for the government and the people of the UK and that may well prove to be crucial to Pakistan.n The writer is a former UN One-Man Commission (Special Rapporteur) on the Independence of Judges and Lawyers, founder of Indian Centre for the Independence of the Judges and Lawyers, senior advocate and former MP |
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On Record
UN Intergovernmental Panel on Climate Change (IPCC) Chairman Rajendra K. Pachauri is an expert on global warming and climate change. He has been associated with The Energy and Resources Institute (TERI) since 1981, first as Director and from April 2001 as Director-General, and is active in several international forums dealing with climate change and policy. In an interview to The Sunday Tribune, he discussed a variety of issues, ranging from the government’s response to the concerns on the aviation sector’s impact on climate change. Q: How is the latest report different from previous IPCC documents? A: The world cannot remain oblivious of the impending environment disaster. The report suggests ways by which countries can stop the already worsening situation. It represents a major advance and its coverage extends to economic, technological and institutional aspects of mitigation measures. It assesses options related to the long term, covering this entire century, besides covering short and medium term horizons extending up to 2030. Stakeholders, including representatives from business and industry and members of civil society have contributed to the exercise. Q: The report gives eight years’ time to the world to act. Will you please explain? A: We have to take this assessment very seriously. There should be a drastic shift from fossil fuels like coal and oil. As ordinary citizens, we have to change our behaviour, lifestyles and consumption patterns. As a country, we have to choose our own pathway and develop and start using energy efficient technologies well within our means. More important, there should be a political will to discuss and resolve the issue. The issue has to catch the imagination of common people. We need a Swadeshi-like movement in that direction. Fighting global warming has to become a world-wide movement. It doesn’t mean going back in time or living in caves. There is so much we all can do without giving up our rights like air-conditioning or comfortable means to travel. Q: Should policymakers take the first step? A: Absolutely. If we have a good public transport system why would anyone want to travel in private vehicles? If you have a fast luxury bus or a train to take you to Chandigarh in two hours, would you use your car? We need more extensive use of rail and other transport system, besides fuel-efficient and cleaner fuel vehicles. If the government could provide efficient transport system, why should we go through the hassles of security and lengthy check-ins at airports? Aviation is another crucial sector. Its emissions may not be very large but at the height at which aircraft fly, they are exaggerated. With the huge profits they make, they can fund a research programme for cleaner fuel options for the industry. The government should identify a plan of action for adaptation and mitigation as we in Asia would be hit hard. The public perception too has to change. Why do we use electric heaters if itsn’t so cold? Q: Is the situation grim? A: We will be in trouble if we do not take instant action. Any further rise in temperature would impact us in many ways, whether it is the scarcity of water, droughts, raising of sea levels, melting of glaciers, erratic precipitation patterns, decline in productivity. The gross per capita water availability will drop by almost 38 per cent by 2050. Glacial melt in Himalayas will increase flooding initially and rise in sea levels. Climate Change also poses substantial risks to human health in poor and over-populated countries like India. There will be a substantial decrease in cereal production potential and losses are also likely in rain-fed wheat. For example, 0.5 degree Celsius rise in winter temperature would reduce wheat yield by 0.45 tones per hectare in India. Those dependant upon rainfed agriculture will shift from villages to cities in search of livelihood, affecting village life and increasing slums in cities. Q: What should be the Centre’s response? A: People are more aware of it. There was also a discussion in Parliament. Our data base is so weak that most of what we know on glaciers is anecdotal. We need focused R&D and the government has to come up with solutions that ordinary people can accept and adopt. Farmers must stop wasting water and electricity and the government should come up with options on improved crop management to increase soil carbon storage. n |
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Give a fillip to small industry While
moving The Punjab Appropriation (Vote-on-Account Bill, 2007) in the State Assembly, Punjab Finance Minister Manpreet Singh said: “Haryana was growing at the rate of 12 per cent and Himachal Pradesh at 7.5 per cent whereas Punjab’s growth rate was only a little over 5 per cent…If the present scenario on the economic front continues, Punjab will be left behind a Union Territory like Andaman and Niccobar Islands during the Eleventh Plan as far as the growth rate is concerned”. The reason for this state of affairs is mainly because of successive governments’ neglect of small industry. Punjab enjoyed a predominant role in the industrial economy before terrorism hit in 1981. This lasted around a decade, but has failed to regain that status subsequently. The position has gone worse under globalisation. This is supported by the decline in the number of new units registered and investment made. For instance, while in 2001-2002, the number of new units registered was 1962 with total investment of 222.4 crore, the same has declined to 612 units registered in 2005-2006 with an investment of 117 crore. The reasons for the decline of small industry are many. Like large industry, the government did not build a strong industrial policy which would have encouraged its growth on a firm footing. After the Indo-Pakistan wars of 1965 and 1971, the government had taken many steps for the growth of this industry, particularly in Amritsar and Gurdaspur districts. Ludhiana’s engineering industry, hosiery and knitwear segments and the bicycle industry made a steady rise. Even in rural areas, the engineering industry made a quantum jump because of the rising demand for several agricultural implements. Many ancillary (small) units had also emerged to help the engineering industry. Here again, Ludhiana made a steady rise. So was the case with Amritsar and Gurdaspur districts. In the entire G.T. Road belt, ancillaries had mushroomed due to the government’s liberal help. This has been missing since 1981. In Ludhiana, no new large units beyond two wheelers have been set up. With oversaturated market of two wheelers (bicycles mainly), the demand for ancillaries has also shrunk. The demand for hosiery, knitwear, woolen garments is not rising significantly. Here, southern states have captured a large share of the market because of their qualitative and competitive production. Equally, with the fast mechanisation of agriculture, the market for small agricultural implants has fallen sharply. This has hit the small engineering units in rural areas. Several small units from Punjab prefer to operate from Himachal Pradesh and Haryana, who offer several sops not available in Punjab. The Badal government should wake up and create appropriate conditions for the growth of both large and small industrial units on which depends the future growth of this state. The border areas should be encouraged by sops. A wise industrial policy and the creation of necessary infrastructure will boost Punjab’s industrial growth.n The writer is Director, Centre for Indian Development Studies, Chandigarh |
Emulate the learned and the pious in all your thoughts and deeds. The sky and the earth will pass away. The one alone will remain for ever. Show mercy and do not curse your adversary and then Kesava is glad.
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THE 84-year-old patriarch of Tamil Nadu politics, M. Karunanidhi has completed 50 eventful years in the state legislature. He groomed his younger son M.K. Stalin assiduously for about four decades and sidelined the
elder and more ambitious sibling, M.K. Azhagiri, resettling him in Madurai. 
A senior advocate told a junior, “hammer the fact when it is on your side and hammer the law when it is on your side”. When the junior asked what should be done if none were in his favour, the senior advocate said, “hammer the table”.
