India's Politicians Present Imperial Pretensions on Judicial Review of Legislation by Dr. Subhash Kapila SignUp
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India's Politicians Present Imperial Pretensions
on Judicial Review of Legislation
by Dr. Subhash Kapila Bookmark and Share
 

India's Prime Minister and the Speaker of India's Lower House of Parliament along with a large number of India's 'Reservationist Brigade' seemed to have been stung by the decision of a Supreme Court Bench to stay the 27 % OBC Reservation Quota in higher educational institutions passed by the Parliament. What needs to be noted is that the legislation itself had yet not been struck down totally. Its operation in the current academic year had been stayed till such time the Government could provide accurate facts and figures as to how the figure of 27% OBC reservation had been arrived at. In a feeble defence the Government put up the plea that it was based on a census taken in1931 by the British and that was the basis for implementing the Mandal Commission reservations also, unleashed irresponsibly by India's former Prime Minister V. P. Singh now a champion of lost causes.  

India at large could not have expected any measured responses from the Cabinet Ministers, politicians and some Chief Ministers who politically thrive on the reservation issue. But it was surprising and painful that the Learned Prime Minister and the Learned Speaker of the Lok Sabha should have joined in a controversial broader issue of judicial review and whether laws passed by Legislatures were justifiable. Both of them gave vent to what seemed as irritation with the staying of the 27 % reservation by the Supreme Court Bench. That the powers of the Supreme Court in terms of judicial review of legislation passed were questioned by the Prime Minister and The Speaker in addresses at public forums somehow gives the impression that India's politicians display imperial pretensions as far as the Parliament is concerned.

This in its wake has generated an intense public debate within India in which one major message seems to be emerging is that India at large respects much more the role that the Indian Supreme Court has played in reining in the populist urges of its unaccountable politicians and political leadership. India at large has no respect for the poor governance and administration provided in the last 60 years by its political class. The present views aired by the Prime Minister and The Speaker on judicial activism and what the Prime Minister calls judicial over-reach has been perceived by the public as one more instance of the political class's intolerance that even the system of 'checks and balances' provided by India's Founding Fathers in the Constitution should not apply to legislation as they represent 'We The People'

The above can be faulted on two counts. Under the Constitution the final arbiter of all laws and executive action to ensure the political class does not run amuck with populist legislation at cross purposes with the Fundamental Rights that are enshrined in the Constitution is India's Supreme Court. Secondly, the sovereign right of ' We The People' was enshrined in the Constitution and it was 'We The People' who gave themselves the Constitution. The Parliament's powers flow from this Constitution and therefore no imperial pretensions are justified.

In marked contrast to the questioning of the Supreme Court powers of judicial review of legislation, the Chief Justice of India in his address preceding the Prime Minister's address came out with a more measured and objective analysis of the issue and some observations merit verbatim quoting:

  • 'The function of the Supreme Court is of vital importance and it is the anchor which holds us to the constitutional government'ever watchful guardians of the liberty of the people against transgression by legislative or executive action'
  • ' It is essential in a country governed by the rule of law that every decision must be made under the rule of law'
  • 'Like any other public institution, the judiciary can be subjected to fair criticism------ but if the criticism is illegitimate and irresponsible, it may lead to incalculable damage to the institution of the judiciary.'

Probably, the Chief Justice was anticipating of the criticisms that would be coming in the Prime Minister in the speech that was to follow.

The noted and respected jurist, Fali S. Nariman also made a telling remark on this subject in a newspaper article which read : 'Ministers of the Government'and some Members of Parliament too'labor under the fallacy of moral populism, the inability to distinguish between the unexceptionable principle that political power is best entrusted to the majority, from the unacceptable claim that what the majority does with that power is beyond scrutiny or criticism.'

It is a sad commentary to witness what the political majorities of India, the so-called 'Secular(?) Brigades' and the 'Reservationist Brigades' have done to the governance and administration of India. Political corruption at the highest levels like the Quattrochhi cover-ups, the Nandigram massacres on political grounds, the Lalu Yadav fodder scam, the tainted Ministers in the present Cabinet, and promotion of minority and OBC vote banks have all been the handiwork of India's political majorities. The fudging-up on the Office of Profit issue in the Parliament was also the handiwork of political majorities and spoke of loss of political standards. They all forget that the majority that they claim would hardly average 30% of India. India's middle class burgeoning everyday and who have generated India's rise to global power status are so contemptuous of India's political majorities that they have not yet politically empowered themselves.

India's Supreme Court must press on relentlessly with their judicial activism and even judicial over-reach to protect the Constitution of India which 'We The People' gave to ourselves. Never should ever the Supreme Court judiciary buckle under the pressure of India's political majority to validate their populist legislative measures. In their resolve the support and strength of India's silent majority will always be with them.

It is probably the shining examples of the Indian Judiciary that has emboldened in next door Pakistan, the Chief Justice of Pakistan refusing to buckle to the threats of the Pakistani military dictator and the legal fraternity for the first time in Pakistani history to generate widespread agitation to support the Chief Justice.

The Indian Prime Minister and The Speaker could have been more circumspect while making use of public forums to air their differing views on Indian Supreme Court's judicial activism. Sequentially, coming in the wake of the Stay Order on 27% OBC reservations, it betrays imperial pretensions, impatience and intolerance of legitimate legal checks and balances provided by the Indian Constitution to check and balance any wayward populist legislation even if passed unanimously by the House. India at large fully knows the political compulsions underlying the unanimity.  

5-May-2007
More by :  Dr. Subhash Kapila
 
Views: 1376
 
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