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DECLARING LAW...
by Vinod K. Kantha*
Cite as : (2006) PL WebJour 2
Being a lawyer for forty years and a designated Senior Advocate for twenty-one years, I have always wondered why the Hon'ble Judges write reams after reams to decide an issue or at times a couple of issues. I reckon, they are quite well and widely read and very knowledgeable. Intricacies of laws are not explainable precisely. I have no heart or even a design to question their wisdom. Their judgments are so pedantic, loaded with American, English, Canadian, Australian and of course, Indian precedents that I have always found myself stupid in the presence of these giants. My Achilles heel has ever remained the case-laws.
For more than a year now I have been discussing the "law declared" by the Supreme Court under Article 141 of the Constitution with my junior friends and many a times with my peers.
Shorn of case-laws (which even otherwise have been my Achilles heel), like the "common man" of R.K. Laxman and not as a lawyer, I am venturing to say whether Parliament is justified in diluting the "laws declared" by the Supreme Court by bringing new legislations and amendments in the Constitution. Is it the arrogance of Parliament? Or are they balancing the scales, lest, the judiciary travels in the domain of the legislature? Or the ruling party is least bothered with the global developments and are happy to be in the labyrinthines of "vote politics"?
It is common knowledge that "laws" are made/framed/enacted by the legislature either the Central Legislature or the State Legislatures. Constitutional rights including fundamental rights are given to the citizens and even non-citizens under the Constitution itself. Those rights are or can be either enhanced, curtailed or streamlined by constitutional amendments.
The Indian judiciary, including the Supreme Court has to act "according to the procedure established under the law". That means the Indian judiciary, including the Supreme Court, has to act strictly as and how the laws have asked the courts to behave. The Court cannot "make" a law. Then why this special power is given to the Supreme Court under Article 141 where it can "declare a law" binding on courts? Is it that such declaration of laws are for the "consumption of courts only"? And the people of India are not to be benefitted by those "laws" declared by the Supreme Court? Or those "laws" declared by the Supreme Court must first get the seals of approval from the legislature(s) before being beneficial legislations? Or the popular Governments want committed judiciary?
These vexed questions are worrying me to no end and I reckon, a large number of people also must be wondering aloud and sharing my views.
Be that as it may, let me understand and share it with the common man, the role of the Supreme Court as envisaged under the Constitution, in the simplest way.
The Supreme Court, in its original, appellate and advisory roles, has created enough space for the fulfilment of the aspiration of the people of India in matters of equality, social, economic and political justice or liberty of thought, expression, belief, etc. or for the enforcement of guaranteed fundamental rights or for the enforcement of those directives to the State, which have thus far, remained mostly confined to the pages of the Constitution or for the meaningful enforcement of existing laws. And the Supreme Court, in its turn, to some extent, has not let the people down and zealously extended the meaning of existing laws including the fundamental rights in its true spirit by declaring "law" within the meaning of Article 141. One has to look back and see how the two organs of the State, namely, the legislature and the judiciary have behaved with fundamental rights. Starting right from the First Amendment to the Constitution, extending up to several others on the right to property, Parliament has sought to curtail the "right" many times, betraying almost a suspicion about them. Insertion of Article 21-A (Right to Education) by the Eighty-sixth Amendment is one of the honourable exceptions. But, that too, not without the mischief of leaving out 0 to 6 years age group outside its purview. In sharp contrast, the judiciary has broadened the scope of these rights in many verdicts. Article 21 is a case in point. Whether it is with respect to overcoming the limitations imposed by the phrase "procedure established by law" or such hiccups, it has widened its scope by interpreting "right to life" to mean right to live with dignity.
If one reads between the lines of the Constitution, it is clear that the Supreme Court, in its original and appellate jurisdiction is expected to dispense justice by deciding the issues before it by passing orders or decrees under Article 142 or even issuing prerogative writs under Article 32. The Governments also are seekers of advice under Article 143 on questions of law. Therefore, the Supreme Court becomes the supreme interpreter of the Constitution and other laws and also an impartial adviser. That means the wisdom of the Supreme Court is acknowledged by the Constitution itself.
If one reads further, the Constitution has given the job of law-making to the legislature, provided in extenso under Part XI.
So the Supreme Court is not expected to "make law". Then why under Article 141 is it expected to "declare law" binding on all courts? Why the words "declare law"? Could it not be something like "precedent" or "decision" or "command" or "direction" or "enabling the laws" or "interpreter of law"?
It is deliberate and a conscious inclusion. It is within the framework of the basic structure. Some of the reasons, I reckon, are:
1. The Constitution expects of the Supreme Court and the popular Governments through their legislative powers to be the true upholders of the aspirations of the people. Popular Governments to frame meaningful laws and the Supreme Court to enforce them through orders, decrees or prerogative writs and at times by declaring laws not by supplanting ones but by supplementing the existing laws.
2. The Constitution expects of the Supreme Court to be shorn of political compulsions and would thus, "declare law" by interpreting the constitutional, legal and surrounding circumstances bereft of any bias.
3. Law, per se, is not what is framed by the legislature. It is the general will of the people or the true concept of justice. And it is best interpreted by the Supreme Court. It shall be idle to believe that the "general will" is best understood and articulated by the legislatures alone. How much time does Parliament actually spend on making of laws or discussing its finer nuances? Plus, are the politicians in the legislatures placed in the right situation to stick to the true idea of justice, buffeted as they are, by the fluctuating compulsions of day to day politics? On the other hand, if we pause and think honestly, we will have to admit that the Supreme Court can also play a role in reading the "general will" in the laws and fine-tuning them to establish a true concept of justice. After all, the Supreme Court is the apex legal institution to ensure justice for all the people of India.
4. If there is an inconsistency between the laws made by Parliament and the State Legislature, there is a specific provision under the Constitution under Article 254 to resolve it. But, if the Supreme Court in its wisdom, which is an acknowledged one, declares law, which may incidentally, in the opinion of the popular Governments, are against the aspirations of the people, the Constitution has not provided any such similar provision. "Declared laws" are, thus, equally efficacious, if not more.
5. Representatives of people make laws after debates, mostly under political compulsions, and with due respect to them keeping in mind the vote banks. The Supreme Court churns them to ensure justice and to meet the aspirations of the people declare laws. It is not that the Hon'ble Judges are not influenced by certain ideology. They are and as such there is always a prominent reflection of their views in the declared laws. Hon'ble Subba Rao, J., Hon'ble Krishna Iyer, J., Hon'ble Bhagwati, J., Hon'ble Chinnappa Reddy, J. to name a few, were the great champions of fundamental rights and so are a good number of present judges.
Therefore the declared laws are those laws, which have passed through the agnipariksha after "fine-tuning" the existing laws.
I must say here that it is not always that the Supreme Court filled in the space between the existing laws and expectation of the people in a welfare State. Instead, it has, on fewer occasions interpreted the laws as "due process of law". But, the throats of the people are so parched that even those fewer occasions are like oasis in deserts. The Supreme Court remains the only beacon of light.
I am afraid, the popular Governments in the past, and even the present, have adopted a confronting attitude not to benefit the nation in its effort for global development, but to satisfy their vote bank or to promote the narrow interests of parties or their leaders.
I am nobody to counsel 800 wise heads sitting in the two houses of Parliament, who think that only they have the "divine right" to make laws for the "welfare of the people". Rest are jokers. Let them not act cavalier. If the Supreme Court's views are under certain ideologies and hence twisted, please correct them. Let them not forget, where angels have feared to tread ... rush in.
* Senior Advocate, Supreme Court and Patna High Court.
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