3 The Role of Judges in the Indian Polity: Law, Politics and the Court

Miss Ms. Meena Panickar

1.Introduction

Do judges have any role to play in politics? Are judges influenced by politics of the time? Do judges control political choices available to the system? These and many similar questions are part of a continuing debate about the role of judges in governance. It is suggested that judges’ role is limited to resolve legal disputes. In other words, judges are prohibited from entertaining political arena. This way of looking at the interface among law, politics and the court is only partial. Another dimension of this interface is to analyze whether judicial decisions decide the fate of political course of action. Appointment of judges may also draw attention in terms of political clout.

In his seminal work Prof Baxi,1 categorically designates judicial process as a species of political process and every constitutional adjudication as a political activity. For him, the court expresses its views through the medium of legal and jurisprudential language to preserve the ‘mystery and mystique’ of the judicial process.2 Judges with high craftsmanship and statesmanship could quite effectively exercise political power while maintaining the illusion that they are really interpreting the law or the Constitution.

Some criticize that court wields power without accountability. In all democratic societies objection to judicial review is voiced when courts begin to do substantive justice. The nation expects the judges of the Supreme Court to guide it onto its goal of a just political order. Whether such a heavy assignment was meant for non-elected body? Although the nation wants its judges to aid it in policy questions, it would not expect judges to by-pass some real boundaries.4 It is pertinent to note that Constitution embodies concepts like equality, liberty, property etc. the content of which need an interpretation that suits the requirements of a dynamic society. Similarly, in the interpretation of statutes, the meaning of today is not the meaning of tomorrow.

This unit examines the interface among law, politics and the Court (Supreme Court). It analyses the role of judges in the Indian polity which is crucial to establish the interface.

Learning Outcomes

This unit aims at the following outcomes:

To understand if there exists any interface between law, politics and the Court, To illustrate the nature of that interface, if any, and

Whether that interface contributes to the development of constitutionalism in the country.

2.Court as a Centre of Power

Indian Supreme Court is a centre of political power.5 Court is a major institution of national Government. It is stated so having looked at the outcome of judicial decisions. Decisions of the executive and legislature may be challenged before the constitutional courts for want of constitutionality. Indian Constitution envisages the Supreme Court and the High Courts as constitutional courts. Constitutionality of the actions of other branches of the State may be challenged for violation of constitutional limitations. This may be for want of legislative competence or violation of fundamental rights. Decisions of these constitutional courts therefore, can influence the agenda of political action. The constitutional courts have the power to read down statutes or strike down laws. They can hold the executive actions as illegal for lack of constitutional legitimacy. The Supreme Court has the power to review and invalidate constitutional amendments.

Since the course of political action is frustrated, sometimes, by the decisions of the Court, it may lead to strenuous relationship of the Court with other branches of the State. It may also engage the organs of the State into a dialogue. At times it may be seen as partnership exercise. Therefore, it is not necessarily a confrontational relationship or role assigned to the judiciary. Judiciary as the guardian of the Constitution while performing its role has an additional responsibility to respect the credibility of the representative institutions created by the Constitution. Therefore, court should remain sensitive to the claims of other major institutions of national Government, namely, the Union Executive and Parliament.

The Supreme Court has no constituency of its own unlike the ones possessed by the politicians and hence the Court is vulnerable. In the words of Prof Baxi, the Court has however, limited constituencies of its own. These, he calls, multiple communication constituencies in the sense that it tries to reach out to different groups through its decisions and to generate consensus and acceptance of its authority.

The Court can be used for political ends. The Supreme Court is not only a court of the last legal recourse, but it may also be the court of the last political recourse. At times we look up to the court to protect us from the tyranny of the majority party. For instance, communists have come to the court in the 50s seeking protection from the tyranny of the majority party. A K Gopalan case7 is a classic example wherein the constitutionality of the preventive detention law was challenged. Reasons of the Court in this case were substantially revised in Maneka Gandhi judgment8 in 1978. This judicial development was possible not only due to the number of years crossed by Indian democracy by that time but the role played by the judges to develop strong democratic traditions resting on civil liberties of people. In that sense court plays the role of oppositional politics.

The Court is kept busy by the State which is the major litigant. It is the duty of the Government to help administration of justice and enforcement of the law. But the Government passes on its burden of decision making to the court. For instance settling seniority claims of government servants or monitor the administration of disciplinary powers over civil servants or contesting cases up to the Supreme Court when elementary issues of social justice are involved.

3. Indian Supreme Court and its Decisions having Impact on Politics

A mapping of the judicial decisions laid down by the Supreme Court indicate that it played a pivotal role in laying down political course of action, influenced law making, changed the nature of secularism and minority rights, refined the picture of democracy etc. Its impact on politics may be represented as given below:

3.1 Constitutional Amendments

The relation of Court with legislature began to change from 1967 with the Golak Nath Judgment.10 In that case Court held that constitutional amendments can be held valid so long as these amendments do not violate the fundamental rights. In the Constitution of India, the prerogative to amend the Constitution is vested with the Parliament under article 368. Does that mean that Parliament can alter the scheme of the Constitution by the exercise of the amendment power? In Kesavananda Bharati case11 Court refined the ratio of Golak Nath. The Court did not limit itself to the fundamental rights as restricting the amendment power but brought the Basic structure doctrine following the German experience. The Court held that Parliament has the power to amend any provision of the Constitution provided the basic structure of the Constitution shall remain unaffected. What constitutes basic structure? Judges used an illustrative list to suggest the elements of basic structure. As Sudarshan notes,12 the idea of state lies at the root of the basic structure doctrine laid down by the Court in Kesavananda Bharati judgment. He further states that this doctrine acquired real teeth in November 1975 when the Court relied upon it to strike down clause 4 of the Thirty-Ninth Amendment. In that case, each of the five judges cited a different element of the basic structure violated by the constitutional amendment, namely, rule of law, principle of free and fair elections, judicial review and equality.

3.2 Imposition of President’s Rule in States

In the Dissolution case14, the Court permitted the dissolution of nine state governments before the expiry of their term. However, the Court was reluctant to follow the same path in the SR Bommai case.15 In the SR Bommai decision, the Court held that substantial constitutional reasons are necessary for dismissing state governments. Therefore, subjective satisfaction of the President was subjected to judicial review by the Court. In this case the Court found that the three state governments were not able to take protective measures to defend the principle of secularism in the aftermath of the Babri Masjid demolition and therefore violated the basic structure of the Constitution. The Court construed this violation as amounting to a failure on the part of the state government to attract the imposition of President’s rule in the state.

3.3 Elections Laws

In the Hindutva cases,16 the question before the Court was whether the use of communal expressions constitutes corrupt practices under the Representation of the People Act 1951. The Court legitimized the use of expression Hindutva by suggesting that the term cannot be limited to religion or equated it with fundamentalist Hindu religious bigotry. The Court observed:The term Hindutva is related more to the way of life of the people in the subcontinent. It is difficult to appreciate how in the face of these decisions the term Hindutva or Hinduism per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be construed to fall within the prohibition in sub-sections (3) and/or (3A) of Section 123 of the R.P. Act.

Accordingly the court held that an appeal to Hindutva is not an appeal to religion. It suggested that these words may be used in a speech to promote secularism or emphasize the way of life of the Indian people or Indian culture. The judgment has been severely criticized for institutionalizing and legitimizing discriminatory practices and communal oratory.

The makers of the Constitution wanted a blend of popular sovereignty and restraint on it by fundamental laws. Thus court while checking or modifying public opinion is checked or modified by it. As Mathew quotes, the failure to resolve the conflict between popular sovereignty and fundamental law meant that fundamental law could be enforced only within delicately defined boundaries- mandates of the Supreme Court and High Courts must be shaped with an eye not only to legal right and wrong but also to what popular opinion would tolerate.18 In the BR Kapoor case19, the Court however, faced a situation to judge on the conflict between popular will and constitutional mandate. The case related to the appointment of Ms Jayalatitha as the Chief Minister of Tamil Nadu. At the time of her appointment, she was disqualified to contest elections due to her conviction under the Prevention of Corruption Act. Though she was disqualified by the Election Commission, her party received an absolute majority in the elections. Party chose her as their leader. Governor appointed the leader of the party as the Chief Minister. It raised the question- what shall govern the Governor in his choice- popular will or the fundamental law. Which is supreme? Constitutional law is not the creature of popular will. Can the Constitution go against the popular will? The Court stated that the constitutional authority like the Governor takes an oath to defend the Constitution at the time of assuming office. If the popular will is not in accordance with the Constitution, the Governor has to abide by his oath and protect the Constitution.

The Court considered the appropriateness of the practice of Election Commission accepting the affidavits of candidates with blank particulars in Resurgence India case.20 The Court upheld the right of the voter to have information about the antecedents of the candidate who will represent him in the Parliament and the legislature. The Court characterized this right of the voter as natural right flowing from the concept of democracy and ingrained in Article 19(1)(a) of the Constitution. The Court quoted paragraph 38 of its decision in 2002 in Association for Democratic Reforms21 thus: 

If right to telecast and right to view to sport games and right to impart such information is to be considered part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter-a little man- to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a). In our view, democracy cannot survive without free and fair elections, without free and fairly informed voters.

Free and fair elections are held by the Court to be part of the basic structure doctrine. 23 Therefore, if the voter does not find any of the candidates as suitable to represent him, he shall be given the opportunity not to vote for any of them. His right to secrecy to choose not to vote for any candidate shall be protected by the Election Commission. Protecting such a right and maintaining its secrecy is important in a democracy.

3.4 Executive Actions

The Court in Subramanium Swamy case 24 struck down the requirement of seeking prior permission of the Government in corruption cases for investigation against government officials in the rank of joint secretary and above. The Court observed that corrupt public officials are corrupters of power. Their segregation based on status has no rationale with the objective of the legislation- prevention of corruption. According to the Court, “corrupt public servants, whether high or low, are birds of the same feather and must be confronted with the same process of investigation and inquiry equally.”

In the coal block allocation, the Court gave the advisory opinion26 that separation of powers is the essence of our Constitution. Policy making and choosing one policy over another are executive prerogatives. Approval or disapproval of such policies should be discussed within the Parliament. However, if the implementation of a policy results in violation of constitutional limitations, the Court can interfere.

3.5 Protection of Civil Liberties

In the Shah Bano case,27 the Court held that section 125 of the Code of Criminal Procedure provides for maintenance of children, wife, parents and it includes maintenance of divorced Muslim women. Section 125 is laying down criminal law and not civil law obligation and to that extent the Court was able to suggest that criminal law is uniformly applicable to all citizens across India. As far as civil law obligations were concerned, the Court stated that the article 44 of our Constitution has remained a dead letter and suggested a common Civil Code. Judges observed:

Some questions which arise under the ordinary civil and criminal law are of a far-reaching significance to large segments of society which have been traditionally subjected to unjust treatment. Women are one such segment.

It further stated:

This appeal… raises a straight forward issue which is of common interest not only to Muslim women, not only to women generally, but to all those who, aspiring to create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction.

These observations by the Court and its decision to apply section 125 of the Code to Muslim women are notable for gender justice, deplorable conditions of women including Muslim women though, through it, there may be a complete rejection of legal pluralism. As Veena Dass observes, “the issue of personal law concerns not only Hindus and Muslims but also tribal communities whose family affairs have been regulated by their own customary laws, on which the intellectual discourse in India, with a few honourable exceptions, remains silent.”

The judgment generated heated debate among the Muslim community both progressive and fundamentalists. However, political pressures succeeded in passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It shows how a verdict by the Court is overcome by the legislature.

Whether Part III and Part IV of the Constitution constitute basic structure? In Minerva Mills31 case, the majority took the view that provision barring judicial review in a legislation intending to give effect to the Directive Principles violate basic structure on the grounds of violation of rights and freedoms in Part III. However, Justice Bhagwati stated that the amendment to Article 31-C is not a violation of basic structure. For him meaningful realization of fundamental rights depends upon realization of socio-economic goals outlined in Part IV.

In the Indra Sawhney32 judgment while upholding reservation for other backward classes the court emphasized the need to exclude creamy layer classes from being the beneficiaries of reservation. The court found it necessary to make reservation meaningful.

A widely criticized judgment on civil liberties is the ADM Jabalpur case33 decided during the phase of national emergency. However, the judges addressed those concerns in Maneka Gandhi decision in 1978.

4.Summary

From the above discussion it may be inferred that an interface operates among law, politics and the court. The judges of constitutional courts are able to chart out and influence the political course of action. It may also be possible that direction of political action changes due to the judicial intervention. This may generate tension between the judiciary on the one hand and executive and legislature on the other. At times judges would come to the rescue of opposition parties. At other times judges may refuse to change policy of the Government, citing policy as within the prerogative of the executive. A balanced perspective on the interface is necessary for better governance of the country.

Web Resources:

1. < www.prsindia.org >

2. < http://www.sal.org.sg>

3. < http://digitalcommons.law.yale.edu>

4. < www.jstor.org >

5. < www.india-seminar.com >