A theatre of Justice? a reflection on George H. Gadbois Jr’s Supreme Court of India: The Beginnings

I. Unpacking the court through the book 


Seated on the extreme right in the photograph on the front cover of the book is a gentleman who distinguishes himself by his sartorial choices. While the remaining justices are adorned with the customary wig, he appears content with only his dark robe. Yet he appears symbolic of the gradual change that would be embraced by our highest court, as it would emerge from the shadow of its colonial predecessor (the Federal court) to carve an identity of its own.

The book is aptly titled Supreme Court of India: The Beginnings, for despite Gadbois’ authoritative voice, his text prods us to examine the genesis of the imperious court from multiple perspectives.Devoid of any rhetorical flourish, Gadbois’ parsimonious prose sees his scholarship shine through the tome.

An elaborate introduction by the editors(Ram & Raghavan) reveals both Gadbois’ motivation(an infatuation with the court borne out of a marvelous first impression of its architecture)and the method behind his manuscript(an exhaustive study of archives housed at the Indian Law Institute and the Supreme Court Libraries).

They mention how Gadbois later eschews bare textual reading of academic material by coloring his subsequent efforts with anecdotes from judges themselves(he conducted only one interview for this thesis) which gives them a fuller texture. This juxtaposes beautifully with the evolution of the court itself, which is originally a forum of appeal only to later acquire sinews which embrace all corners of our polity.

II. An inheritance of irreverence: Before the court was supreme 

The first two chapters of the book are devoted to the federal court, a predecessor of our Supreme Court established vide the Government of India Act, 1935.The Federal Court is granted mere 

advisory powers over the High courts, while it works under the supervision of the Privy Council. Prior to its creation Gadbois mentions that the demand for an indigenous court of ultimate appeal (by advocates like Hari Gour) is rejected by fellow Indians (Nehru and Sapru) who value the impartiality of the Privy Council as the final arbiter, due to its detachment from the local politics of the day. 

Gadbois details the Federal Court’s opposition to the preventive detention of political prisoners during the Quit India movement,even amidst harsh opposition from its own executive. This endears it to the native freedom fighters. The Privy Council’s respect for its judgements further enhances its reputation. The Council upholds the Federal court’s judgement in five out of ten cases which are referred to it by the Federal court itself, and grants Special Leave to Appeal in only four cases (out of which it overturns the verdict in only one instance). The endorsement strengthens the case for establishing a domestic supreme court (amongst the natives) which could be trusted to remain impartial when subjected to severe pressures from an otherwise deeply fractured society. That the original reservation regarding the creation of an indigenous court is on the wane becomes clear when the Indian jurists reject Chief Justice Spens’ offer allowing litigants to choose the forum of appeal(either Federal court or the Privy Council) in 1943. 

III. Conflict and conciliation: A tumultuous relationship between the Judiciary and the Legislature

Despite the codification of powers possessed by the judiciary in the Constitution itself (24 Articles are devoted exclusively to the Supreme Court) Gadbois contends that his contemporaries were wrong to proclaim it as the most powerful in the world. According to him a wide jurisdiction does not equal unquestionable power, an observation borne out by the exclusion of the due process clause in Article 21 and the bar on judicial review of the compensation given by the government when it acquired private property (the first has been diluted by a progressive reading of the statute by the court in subsequent cases[1] while the second has been removed Completely).

The final chapters of the book outline the tussle between the two pillars of the state; the legislature and the judiciary, with the constitution acting as the backdrop. The contrasting attitude of the two organs is best demonstrated through the speeches of their respective chiefs. Prime Minister Nehru denounces private property as an abomination, while Chief Justice Bose maintains that “public good is possible only when private rights are protected by municipal law.” These quotes encapsulate the confrontation between an omniscient government restless for social engineering and a court mindful of the citizens’ rights, yet which waivers in its commitment to protect them.

Initially the court seems unduly deferential towards legislative intent(especially in preventive detention cases like AK Gopalan[2]. It does however resolutely defend individual rights, when it comes to expropriation of property. This frustrates the welfare agenda of the ruling party which resorts to precluding judicial review of Article 31 [A] and 31[B]. The logjam ensues also because of how the court parses the legislation. It takes a rigid originalist stance by privileging the founders’ vision, disregarding statements of objects and reasons accompanying the laws, to better understand their broader import. This leads to an unpredictable jurisprudence as discerned from the application of original-ism to Article 21(dangerous for civil liberties) and Article 19(expansive hence problematic for the executive). The subtext to these chapters is the uncovering of the nature of the constitution itself and the powers(and responsibilities) it confers on individual parts of the state. 

The legitimacy of the court is also brought into the docks. As the interpreter of the constitution it assumes the risk of falling afoul of Indian ethos(as purportedly represented by the Legislature). Is this a perennially existential dilemma for the court? These questions are left unanswered for it remains unclear (even to this day) if the court construes itself as the apex judiciary of India, or as the apex Indian court? A resolution is necessary for the former values fidelity to a code that goes beyond parochial nationalism, the latter refers to a strict adherence to the cultural mores unique to a society. 

As for the judges, those who initially housed the Supreme Court hadn’t participated in the freedom struggle. Hence they were deemed agreeable to the application of legal principles laid down by their colonial forebears. While their civility granted them(a perception that persists even to this day) a degree of respect amongst the political leaders, they were not considered to be acute judges of the people’s aspirations. A tantalizing question ensued: Are judges doomed(for eternity) to be deemed as impediments to a constructive national project? 

Amidst this struggle for supremacy, Gadbois also manages to expound on some grounds of reconciliation. He alludes to the harmonious co-existence between Part III and Part IV of the constitution(Fundamental Rights and Directive Principles of State Policy). While Part III has primacy(over Part IV), and the latter is not justiciable, he contends that the court can invoke Part IV for realizing Part III hence facilitating collaboration between the judiciary and the legislature(and by extension the executive).How this interpretative tool would later empower the judiciary to usurp the legislature’s (and by extension the executive’s) mandate, to crown itself as the sole custodian of the public welfare(through measures like Public Interest Litigation) could not have been foreseen by Gadbois. 

IV. A prelude to reform 

The book is a veritable repository of problems plaguing the court. A couple are discussed in detail(with possible rectifications) below. 

First is reducing undue exclusivity of the court. The Supreme Court is deemed to have failed in formulating a uniform policy for admitting matters through special leave to appeal under Article 136 of the constitution. Subjective metrics like impact on a large section of society or including a substantial question of law for admittance not being conducive for consistent application. This tethers admittance to the whims of individual judges, which makes the knowledge about their proclivities a prized possession for the litigants. Since the advocates interact regularly with them, they amass significant power by virtue of being the sole possessors of this informal information. 

This puts them in a privileged position while conferring on them a responsibility to keep the judiciary in check. However, there isn’t much incentive for the litigators to pursue reform[3] and push for standardization of the court’s procedures because it can lead to a loss of pre-eminence (and remuneration). In any case more research needs to be undertaken with respect to how the  bar does and can better regulate the functioning of the bench. 

Second is the question of ‘Quotas’ in judicial selections. Gadbois had described the judges of the incipient Supreme Court as mostly upper-caste Hindu males. Little has changed since then. 

Considering they adjudicate over matters pertaining to affirmative action(reservations for economically or socially underprivileged sections) shouldn’t the court respect the principle of positive discrimination while selecting its own members? Or is legal acumen the only barometer of a jurist’s capabilities?If judging isn’t entirely apolitical (as evinced from the book) then shouldn’t diverse viewpoints echo in the court’s chambers? Or is it necessary to insulate the judiciary from communal considerations?These are questions which call for immediate introspection, especially in light of the recent order passed by the court modifying the scope of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989. 

V. The coda 

Gadbois’ treatise is a testament to both the resilience of our polity and the flexibility of judicial doctrine. It is a fascinating introduction to how the court navigates the former by relying on the latter. It exhorts us citizens to cerebrally engage with our supreme watchdog so that we can fortify our democracy by bettering its guard. In The Nine[3], a comprehensive chronicle of the US Supreme Court, Jeffrey Toobin mentions how steps were used to elevate the appearance of that court, which inspired awe amongst all visitors. In stark contrast our Supreme Court’s building wasn’t universally lauded, with some calling it a‘’cubistic structure devoid of any majesty”. For Gadbois it was a marvelous first impression which led him to construct this monumental thesis which will forever remain the ledger for Indians to access its august chambers. 

The author Mr. Rahul Mohan is a student of Campus Law Centre, University of Delhi.



Gun Island: History, Myth and a Non-linear conception of time

The word history is derived from the Latin word historia which means account of past events. History can be seen as a systematic written account comprising of a chronological record of past events, circumstances, and facts. But the word history could also imply a story or a narrative of events connected with a real or imaginary object or a person. These two meanings of history pervade the novel Gun Island by Amitav Ghosh.

Fiction writers generally approach the historical past from the latter perspective. They try to sort out historical materials with an attempt to translate and recast them in an imaginary milieu. This is a process of defamiliarization and realigning documentary data into various kinds of matrices. In this work, the protagonist Dinanath Dutta is a dealer in rare books and other Asian antiquities. Placing the protagonist in such an occupation helps Ghosh to impart innumerable historical facts but he uses these facts to further a narrative that is rich in mythical and supernatural elements. The novel itself is a journey of finding historical basis to the myth of gun merchant. He demonstrates the joint power of imagination and discovery.

American Historian Hayden White in his essay “Metahistory: the historical Imagination In 19th century” argued that ‘historiography cannot be objective or truly scientific in itself, unaffected by anything. Historical writing has strong reliance on narrative for meaning. He proposed that history was above all writing, that its form was vital to its content. The novel, Gun Island has an abundance of historical facts and scientific truths such as climate change, but the form and structure of the narrative resemble a myth.

 It is filled with supernatural elements and prophetic visions of the future. The protagonist Deen, seems to be haunted and chased by the ghost of a gun merchant and Mansa Devi. Characters such as Tipu and Rafi seems to be undergoing the cycles of rebirth. Character of Cinta acts as a wise sage and guide to our hero Deen in finding the truth behind the story of Gun merchant. She tells Deen that the strange depression he is feeling is a kind of awakening and a gift. The novel ends with the occurrence of a miracle and the sacrifice of an innocent. The Blue boat is rescued but the price is Cinta’s life. However, Cinta seems to have gained otherworldly wisdom during her ‘final’ moments, she says “time itself is in ecstasy. I had never thought I would witness this joy with my own eyes…”. Gisa her sister says that “Cinta’s gone” highlighting the western perspective of considering death as a final departure. The novel seems to refute this notion by presenting us with the ghostly presence of Cinta’s daughter Lucia, gun merchant and Mansa Devi.

Ghosh seems to envision time not as chronological and linear but cyclical and spiral. In that sense, he showcases an Indian understanding of time and history. It seems to flow in circular cycles instead of a linear structure. Ghosh compares the word “Bhuta” which, generally, means the term ghost to its other denotations- past, as well as, existing presence. It highlights the tendency that past constantly shows it’s vestiges in present times. This can be seen in the lines- “But if the same word means both existing and existed wouldn’t it mean that the past wasn’t past? That the past was present in the present?” The novel presents a fluid and intermingled sense of time and history, where the time is not alienated from each other but flows together.

In contrast to this, if one considers Biblical creation myth in the book of Genesis as a window in the western conception of history, it shows that the narrative of the myth starts at the beginning and ends with a view of ‘end of time’-an apocalypse. This conception of history provides a linear structure of time with a beginning, middle and a definitive end. In the novel, at the conference in L.A. a speaker talks about climate change and apocalypse. He refers to apocalypse as the end of the world scenario and says -“It has fallen to us, centuries later, to bear witness to the last turn of the wheel.”

The western perspective seems to expect a final end. Indian perspective seems to highlight the repetitive nature of struggles for survival against time. In The Hungry Tide, published in 2004, Ghosh writes – “It is common knowledge that almost every island in the tide country has been inhabited at some time or another. But to look at them you would never know: the speciality of mangroves is that they do not merely recolonise land; they erase time. Every generation creates its own population of ghosts.”

There is a constant struggle with time and trying to create and sustain your memory in history. In Gun Island, past is referred to as a beast that haunts the present times. “it was memory itself…it was much older than me, some submerged aspect of time that had been brought suddenly to life”. He calls this memory of the past as “something fearsome, venomous and overwhelmingly powerful.”

This intense metaphor is used in the novel as a cautionary statement. The actions of the past will have consequences in the future and one should learn from their history.  However, history as a collection of factual data seems inadequate in dealing with the changing times. For example, in the novel, Deen attends a conference at a museum in L.A. and the opening speaker talks about ‘Climate and Apocalypse in the 17th century’ the reaction of the audience is that of disdain and disbelief. However immediately wildfires break out nearby questioning this sense of complacency in the world. The reaction of the audience in the museum is in stark contrast to the panic of the people of 17th century who were witnessing climate change. Historical facts about catastrophic events are no longer enough to invoke action from people. Fiction and imagination are required to weave these facts into stories. Ghosh echoes this sentiment in the novel “Only through stories can invisible or inarticulate or silent speak to us; it is they who allow the past to reach out to us”.

Edward Casey in his essay ‘Imagination and repetition in Literature’ writes- “imagination can concern itself with possibilities which stem from the past, and repetition can direct itself into the future, and both acts take place in the present.” Amitav Ghosh in his novel gun Island tries to render the unknown future and the devastating past in the present.
‌In an interview with post magazine Ghosh said that “A standard trope when writing about the unknown we face today is to project it into the future. But we can’t see into the future, all we can look to is our human past, to earlier periods of catastro­phic change. If we’re going to pin all our hopes on the future, then we must also look to our past.”He again highlights this sentiment in the novel “from the beginning salvation comes” and “the possibility of deliverance lies not in the future but in the past.” This highlights that past doesn’t need to be seen in disjoint with the present or the future. It needs to be one connective cohesive flow. The stories that concern with the present and future, should include past, not as factual history or a background setting but rather as an invigorating narrative presence.

WORKS CITED:

Casey, Edward. ‘Imagination and repetition in literature: A Reassessment.’ Yale French studies (1975)

Ghosh, Amitav. ‘Gun Island’ (2019)

Ghosh, Amitav. ‘The Hungry Tide’ (2004)

White, Hayden. ‘Fictions of Factual Representation’. Columbia University press (1976)

Lawyers Vs Delhi Police: We are failing our citizens

It’s not easy being an ordinary citizen. 

One is up against all kinds of odds: societal, economic, personal, and political. She, nevertheless, carries on, every day, with a sense of belief that she is roofed under a system that is pillared by law, order, and a community of good people: bound by the promise of their statutes.

In dark and difficult times, she converses, with the ideals of the state. It fills her heart with hope and capacitates her to put a strong foot forward towards tomorrow. And, in this way, through her faith, she keeps the idea and the necessity of a state alive.

A state is, for, after all, a thought: a belief system that is kept alive through the institutions running in its name.

In Delhi— owing to a tug of war between its carriers—the idea of that ideal state stands disrobed. Its skin of romanticism peeled off and its mass of myths cut to pieces. A sight of oddment, now remains, bare, for everyone to see whilst it attempts to unsuccessfully cover its vulnerabilities.

It originally started as a parking dispute. And, soon, the national capital was a conflict zone of lawyers and policemen, up in arms against each other: Shots were fired. Blood was spilt. Arson followed. Chaos was granted a realm. In no time, the protectors became protestors seeking protection from the upholders of the law, who in turn, were out pummelling the rule of law to bits and pieces by their fists and (sometimes) even kicks.

It was all before the wide eyes of an ordinary citizen. She switched through news-channels and scrolled through the social-media as the foreverness of her belief stood beaten, bruised and bloodied. It felt like one of those times where anything that could go wrong did go wrong.

The police were claiming to have an unimaginable power, only and unfortunately, estopped by its discipline. The lawyers, on the other hand, confident of having the law by their side, were roaming around, beating up people, like an unorganised horde of a feral kind.

The police had forgotten that it has the power, that it claims to have, only because it’s disciplined and will not such have such faculty, in the absence of a rigour. The lawyers had forgotten that no authority— so far— had given them a license to act as a militia around what was still known as a court of law. The police refused to acknowledge that restraint lies at the very heart of their legitimate power. The lawyers refused to accept that the strength that they have today emanates from goodwill built by their forefathers through decades of demonstrated gravitas, rectitude and honour.

It was a hideous sight for a citizen to see one arm of the criminal justice administration take on the other. In those hours of madness, we forgot who we were in the system: parts— bhagas. And, in vain, tried to become the system in ourselves: the whole— bhaga-van.

Now, in hindsight, we must pause, re-think and look around. If wrongs have happened, we must let the inquiries follow. The guilty shall be brought to book. We have to have faith in the judicial system we have so carefully built with our sweat, blood, and centuries of sacrifice. We cannot allow ephemeral feelings such as vanity to guide our course. A common citizen’s faith in a state, its institutions and its machinery is essential– not only for him, but even more so for the state itself to survive and sustain. These are trying times. And, there is a great deal of difficulty in being good. However, as the motto of the Supreme Court of India claims— we must believe: Yato Dharmastato Jayaḥ, where there is righteousness, there is victory!

Let us not fail our people. Let us not fail their beliefs. Those pillars that hold our roof can’t fall. That is our common dream. This is our home. Let us promise to hold it together: today, tomorrow and forever!

[Chandan Karmhe is a Campus Law Centre law graduate, Chartered Accountant and an IIM-Ahmedabad alumnus]

THE UNTOUCHABILITY ANGLE TO SABARIMALA

Entry of women aged between ten and fifty into the hilly shrine at Sabarimala is one of the most discussed issues in the recent times.  Through this piece, I am trying to deal with only one aspect of that case, which was largely ignored.   It an issue relating to the interpretation of the word “untouchability”, occurring in Article 17 of the Constitution. 

 The practice of exclusion based on menstruation constitutes a form of untouchability and is prohibited by Article 17 of the Constitution, argued Ms.Indira Jaising, senior counsel for parties who want women entry.  This argument finds acceptance in one Judge’s (Dr.J.D.Y.Chandrachud) judgment.  Another Judge, J. Indu Malhotra dissented on this issue.[1]      

Unlike many other places of worship, Sabarimala is a place where not only Hindus, but people belonging to any other religion is also permitted to go.  There is no bar on the basis of religion, caste, place of birth.  The only restriction is for women of menstruating age group.  Therefore, can it be said that there is a form of untouchability at Sabarimala?  Many people wondered! 

Often, common understanding of an issue and a legal definition is slightly different.  What misses the eyes of a many a commoner is the legal basis for this reasoning.  This take us back to the old but famous conversation between King James I of England and Chief Justice Coke.  To the query of King ‘whether the King is not aware of the “reasons” behind laws, just like Judges’, Chief Justice Coke replied : “..true that it was that God had endowed His Majesty with excellent sense and endowments of nature; but His Majesty was not learned in the laws of his realm of England .. are not to be decided by natural reason but by the artificial reason”.  Chief Justice then explained: “law is an act which requires long study and experience, before that a man can attain to the cognizance of it that the law was the golden met-wand and measure to try the causes of the subject.”

Judges of the highest Court adopt certain tools of interpretation while dealing with Constitutional provisions.  Reference to the Constituent Assembly Debates (CAD) is one.  Justice Indu Malhotra refers to CAD to hold that untouchability was practised against Harijans or people from depressed classes, and not women. 

Dr.Justice D.Y.Chandrachud also refers to CAD but finds something more deep. There was a proposal by member of the Constituent Assembly, Naziruddin Ahmad, for restricting ‘untouchability’ to its religious and caste-based manifestations only, which got rejected by the Assembly.  Then there was a specific query from one member, Professor K T Shah.  After referring to certain practices among certain communities, Prof.Shah asked the House.  “We all know that at certain periods women are regarded as untouchables. Is that supposed to be, will it be regarded as an offence under this article?”  Dr.Ambedkar did not give a reply to this query. 

The refusal of the Constituent Assembly to provide any definite meaning to ‘untouchability’ (despite specific amendments and proposals voicing the need for a definition) indicates that the framers did not wish to make the term restrictive, holds Justice Chandrachud. 

How then menstrual taboo, akin to untouchability?

Justice Chandrachud finds that the basis of untouchability is notions of purity and pollution.   He then records: “Any form of stigmatisation which leads to social exclusion is violative of human dignity and would constitute a form of “untouchability”… The guarantee against social exclusion based on notions of “purity and pollution” is an acknowledgment of the “inalienable dignity of every individual”.

This is how the learned Judge arrives at the finding that the exclusionary practice adopted at Sabarimala is a form of untouchability. 

It may be noted that the Constitution forbids practice of untouchability in ‘any form’.  Word untouchability is not defined anywhere in the Constitution. 

During the course of hearing review petitions, senior counsel Mr. K. Parasaran argued that the term “Untouchability” is in inverted commas because it is nomen juris. It was argued that it should be understood as was in its historical context, and the expansion of its application to menstruating women by Dr.Justice D.Y. Chandrachud is an error apparent on the face of it, and should be reviewed.

In reply Ms.Indira Jaising submitted that the term “Untouchability” has been put in inverted commas because the word did not exist in the English language prior to 1918. Referring  to ‘Untouchability and the Law’ by Marc Galanter[2], and ‘Geneologies of the Dalit Political: The transformation of Acchut from Untouched to Untouchable in early Twentieth Century North India’ by Ramnarayan Rawat[3], she submitted that the English translation of the Sanskrit word “Acchut” to “untouchability” is a verb that co-relates to the practice of treating someone as “Acchut.” The creation of an English word for this practice is the reason for the inverted commas. The word untouchability is a verb and its practice has been abolished, regardless of the caste to which a person belongs. The fact that a purification ceremony was conducted after the entry of women aged between 10-50, squarely makes it an act of untouchability, she submitted.

The debate on untouchability has therefore reached a new chapter on being perceived through a prism of women rights. Its presence in the Sabarimala issue and the Judgment is indeed a stepping stone in developing a comprehensive understanding of untouchability in times to come

By Prashant Padmanabhan,

Advocate on Record, Supreme Court.

*The author has assisted Ms.Indira Jaising in the Applications opposing Review Petitions in Sabarimala case, before the Supreme Court. 


[1] https://www.sci.gov.in/supremecourt/2006/18956/18956_2006_Judgement_28-Sep-2018.pdf

[2] EPW vol.4 issue 1-2, Jan 1969

[3] https://journals.sagepub.com/doi/abs/10.1177/0019464615588421

SIMULTANEOUS ELECTIONS- A BANE FOR ELECTORAL PROCESS IN INDIA

The idea of ‘One nation, One poll’ was brought to the centre stage in the 2014’s election manifesto of Bharatiya Janata Party and since then has been widely debated and discussed vigorously on multiple forums including Election Commission of India, 170th Report of Law Commission, NITI Aayog and 79th Report of Parliamentary Standing Committee on Public Grievances, Law and Justice on the feasibility of holding simultaneous elections for Lok Sabha and State Legislative Assemblies. The idea of simultaneous elections was primarily propagated on the notion that it will result in savings in terms of money, manpower and other resources spent on election and will lead to better governance and development of the nation. However, the proposal is not only impractical and politically motivated but also suffers from the fallacy of ‘argument by analogy’. A similar calling for simultaneous polls was also put forth by former President Pranab Mukherjee while in office, however after retirement he also termed the implementation of idea as difficult and not symbolic of a ‘representative democracy’.

AN OLD PRACTICE WITH A NEW FACE

The practice of simultaneous elections is not a new concept and rather was in operation between the period from 1952 to 1967. However, the practice  was disrupted by failure of assembly before the end of the term of elected party or failure of constitutional machinery. The implementation of this idea would  require alignment of the terms of elected parties in State and such a practice would only violate the Constitutional right of an elected party to serve for five years. The move is highly flawed and will require constitutional amendments as recommended by the Law Commission that will impact the federal structure of the nation which forms part of the basic structure of the Constitution. A solution presented by the Report of the Standing Committee is in the form of ‘constructive no-confidence motion. According to this remedy a ‘no-confidence’ motion will be passed only when there is confidence in alternate govt and not in the absence of such confidence.

THREAT TO FEDERALISM

It is indeed ironic that a nation known for its diversity and pluralistic nature, the practice will only put issues involving federalism at a backseat. Studies by Association for Democratic Reforms (ADR) and Centre for the Study of Developing Societies (CSDS) have put forward verifiable and reliable data to highlight the fact that simultaneous elections might impact voting behavior in a manner that would benefit larger national parties thus adversely affecting the regional parties. A study by CSDS of 31 Assembly elections that were held along with the Lok Sabha elections from 1989 to 2014 show that in 24 instances/elections the major political parties polled almost a similar proportion of votes for both the Assembly and the Lok Sabha, while only in seven instances was the choice of voters somewhat different, thereby shrinking the choice of the electorate. 

MODEL CODE OF CONDUCT MIRAGE

The argument put forth by the political parties that model code of conduct followed due to frequent elections interrupts the developmental process is highly political as the Election Commission has time and again asked the parties that if necessary they can work for the execution of schemes however should not publicise it. Moreover it only bars from initiating new schemes not working in the direction of old schemes already running. The Report of the Standing Committee projects the successful working of simultaneous elections in other countries like South Africa, Belgium and Sweden however, in this analogy it fails to recognise that these countries follow proportional representation system for the election of candidates unlike first past the post system followed in India. 

CONCLUSION

There is no doubt that democracy is an expensive system compared to totalitarian regimes or monarchies. Renewal of mandate costs money, requires manpower and restricts public discourse on other issues. On the contrary, democracy is also the only system which makes political leaders answerable to the lowest common denominator. As stated by former Chief Election Commissioner, Mr. S Y Quraishi,”frequent elections in India also ensure accountability of political parties in contrast to the usual tendency of political parties where they disappear for five years once voted to power.” Thus, on account of a choice between between democracy and expenditure, it is the spirit democracy which has to trump pecuniary expenses. 

[Mallika Agarwal is a Final year student of Campus Law Centre, University of Delhi and the winner of Confero 2019, Campus Law Centre’s National Debate Competition on the topic ‘Simultaneous elections in India, a boon or a bane’]

When Judicial Activism turns into Judicial Overreach

There is a very thin line of demarcation between Judicial Activism and Judicial Overreach. While Judicial Activism is crucial and beneficial for the society, Judicial Overreach has many perverse implications. In India, when the other pillars of democracy have been unjustifiable in performing their due functioning, the Judiciary has stepped in to do justice. The Constitution of India mandates the Judiciary to keep the legislature and executive in control in order to preserve democratic values.

How it Started:

Judicial activism in India started in the late 70s when in 1979 a case was filed in the Supreme Court which is famously known as Hussainara Khatoon case. For the first time in the history of legal system of the country, it was observed and Justice Bhagwati said – ‘It is not necessary that only the aggrieved should approach the court, but anyone for welfare of society in large can approach.’ In SP Gupta case, the term Public Interest Litigation (PIL) was coined which in the current times has become synonymous with the Judicial Activism. Reflecting on the facts of the case- it was pertaining to the condition of 40, 000 prisoners in a jail of Bihar. Other instances of it which create a benchmark are Vishakha case and MC Mehta case making Judicial Activism a means to get justice.

Need of the Hour:

When the legislature and executive fail to deliver its governance, the court interferes to fix it. It is when all the government institutions are failing, it is on the judiciary to step in, in order to deliver justice. In Keshvanand Bharti case, the Supreme Court reflected on the basic structure of the Constitution. It provides the line which shows the way where there has to be the intervention of the Judiciary in order to render justice and preserve the supreme constitutional spirit.

In the current scenario, we see the Supreme Court using its power in determining the height of Govindas in Dahi Handi case, intruding into the job of executive and legislature in the appointment of Lokayukt, reforming BCCI, cancelling the 2G licenses, shutting down liquor shops near highways, and more. There have been vast deviations from it reflecting its misuse.

Violating the Principle of Doctrine of Separation of Powers:

If the legislature or executive fails to perform its duty then the judiciary is ought to interfere. Can this excuse be used in the opposite scenario? Can the legislature or executive interfere when the judiciary fails to perform its duty? 3.3 crore cases pending in courts including 43 lakhs in HC and 58, 000 in SC according to National Judicial Data grid. Can these grounds be used to interfere in judicial matters and will it not be the violation of constitutional spirit then? We saw the same when NJAC was held unconstitutional by the Court citing it as a legislative interference. The Constitution has provided ways for checks and balances which are enough to keep the institutions in check.

Conclusion:

Thus, it can be summarized in the following points:

• Interference of any pillar of democracy in the matters of one other is against the doctrine of Separation of Power.

• An unelected court should resist in interfering in the matters of democratically elected legislature.

• There is always inefficiency in governments but it cannot be used as an excuse to intrude into the powers of government as it can lead to severe implications.

A truly democratic state can only be maintained when each of such institution does their job with punctuality. Overreach can only lead to anarchy and chaos which would be against the democratic principle of our constitution. The job of the judiciary is to interpret the constitution and to preserve the constitutional spirit and not to become a Constitution itself.