Speaking at the Second J Dadachanji Memorial Debate, Venugopal disapproved of the judiciary relying on the concept of Constitutional morality in judgments like in the Sabarimala case
Criticizing the Supreme Court for relying on Constitutional morality and the basic structure doctrines, Attorney General K K Venugopal said recently that the apex court had “garnered to itself vast powers, which no one apex court in the world has ever exercised” and that its interpretation of Article 142 of the Constitution, in a manner, conveyed that it was “above the law”
Speaking at the Second J Dadachanji Memorial Debate, Venugopal disapproved of the judiciary relying on the concept of Constitutional morality in judgments like in the Sabarimala case. He said he hoped that “Constitutional morality will die with its birth” and warned that “if (the court) still persists with it… Pandit Nehru’s belief that it would result in the Supreme Court of India becoming a third chamber will come true”.
The country’s top law officer also clarified that he was speaking in his personal capacity.
Tracing the history of “conflict” between the judiciary and the legislature, the AG said the apex court had, in the early years, struck down land reform and nationalization laws “on a strict and literal interpretation of the Constitution”.
The government responded by bringing amendments “one after the other”, he said. The then Chief Justice M Hidayatullah said the “only purpose” of the amendments was “to neutralize the judgements of the Supreme Court”, the AG recalled, adding that it is “very difficult to say whether the court was right.”
“Things came to a head when the Kesavananda Bharati judgement was delivered”, he said, adding this was the “deathblow to the Supremacy of the Parliament”. By a 7:6 majority, the apex court had in that case laid down the basic structure theory and restrained the government from amending it.
“The Preamble of the Constitution says ‘we the people’. We gave to ourselves this Constitution. Are you going to treat the whole of the population as illiterate and not able to think for themselves? I say no. Maybe the illiteracy today is 26 per cent, but even those (people living in the villages and rural areas), they have basic wisdom and they know what is good for them. And therefore, for the court to believe that unless we interfere, the country is doomed, I say no, it can’t”, said the AG.
He also criticized the manner in which the apex court had interpreted Article 142 of the Constitution saying it was “used” by the court… as a powerful weapon which surpassed all the powers conferred on the Supreme Court by the Constitution”.
Venugopal said, “Article 142 merely permitted the Court to pass such decree or make such order as to do complete justice in any cause or matter pending before the court…But the Article was treated as a Kamadhenu from which unlimited powers flowed to the apex court of the country.”
He explained that he had used the word “unlimited” because of what Justice M N Venkatachaliah had said about it in the Union Carbide judgement in 1991.
In that case, the apex court had said “the power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision”.
Referring to this, the AG said, “First of all, Article 142 had nothing whatsoever to do with the powers of Parliament. It had nothing to do with the powers of the Supreme Court override the laws made by the Parliament. But, this is what was said by the very eminent judge Justice Venkatachaliah. In other words, they said that so far as the Supreme Court is concerned, we are above the laws”.
"The Preamble of the Constitution says ‘we the people’. We gave to ourselves this Constitution. Are you going to treat the whole of the population as illiterate and not able to think for themselves? I say no"
“The result is that instead of the supremacy of the Constitution, the supremacy of the Supreme Court of India was established”, he said.
However, he said, the SC itself “realized the folly of placing the court over the law made by Parliament” and in the 1998 SCBA vs Union of India case, diluted its judgement in the Union Carbide matter.
Expressing to his concerns on Constitutional morality, the AG said he had a “justified apprehension” that it will now be used to test the laws.
Referring to the Sabarimala judgement, the AG said, “What is this Constitutional morality? If a bench of the Supreme Court speaks in two different voices, one saying Constitutional morality will permit the entry of women and the other one which says no, it’s prohibited because of constitutional morality, that is a very dangerous weapon. You cannot use it. It can result in grave injury without anyone knowing where it’s going to end. Therefore I’m hoping Constitutional morality will die with its birth. If it still persists with it, I’m afraid that Pandit Nehru’s belief that it would result in the Supreme Court of India becoming a third chamber will come true.”
The apex court had, in a 4:1 judgement, struck down age restrictions on the entry of women to the Sabarimala temple in Kerala. Both the minority and majority judgements had relied on Constitutional morality to justify their conclusions.
Speaking before the AG, Supreme Court judge Justice Madan B Lokur said the apex court had often been criticized for “judicial activism” and “hyper-activism” whenever it acts to make up for “executive inaction”. Citing the varied types of cases that come up before courts in other countries, he said: “I think we are comparatively far more restrained than other jurisdictions”.
Solicitor General Tushar Mehta too spoke on Constitutional morality and touched upon the need for caution when dealing with Constitutional morality.
Mehta, who also said he was speaking in his personal capacity, remarked in a lighter vein that the court had in the Baba Ramdev case said that right to sleep was a fundamental right and that it had now said that right to sleep with anyone is also a fundamental right.
He added that “these issues are decided by very learned and brilliant judges in good faith and in the interest of the nation. But under the Constitution, this field is in the domain of the legislature”.
This article was originally published in The Indian Express.
(https://indianexpress.com/article/india/sc-has-takenmore-powers-than-any-apex-court-hope-constitutionalmorality-dies-with-birth-a-g-k-k-venugopal-5484988/)
Former SC judge Kurian Joseph talks about his remark that ex-CJI Misra was working under some external influence, blames lack of communication for delay in appointments earlier, reflects on constitutional morality in faith-linked cases, pitches for a Secretariat, and calls for alternative methods to litigation
About what happened in the Supreme Court… The perception was that things are not going in the right direction. In fact, we met him (former CJI Dipak Misra) casually and told him that this is the perception in the minds of the other judges, public and, in the media, and so you should take corrective steps. It is not that we did not try (to speak to the former CJI). We tried all methods — telling him casually, bringing it to his notice and then formally meeting him. Finally, we also gave it in writing. When all these attempts failed, when we were pushed to the wall, we went out and, as one of us said at the time, we discharged our duty to the nation.
Yes. After that episode, several corrective steps were taken by the then CJI. He was open to it. That was something very positive. However, one of the steps that we suggested was not implemented; it is very sad. I feel being a great institution, institutional practices should be in place (at the SC), rather than individual CJIs coming and going, and taking their own decisions. In the Supreme Court, the whole thing depends on the CJI concerned. So one CJI will adopt a policy and then it need not be followed by the succeeding one. It was in this context that we made a suggestion that let there be a committee of judges, preferably with some incoming CJIs as members, so that there is no disruption and debate later… and there will be a continuity of practices. Unfortunately, that was not accepted. But yes, several steps were taken and things have changed quite a lot. The process of improvement is still on.
What I said was that there is a perception that there is an influence. We could perceive that he was not taking independent decisions. If the CJI does not take independent decisions, then the independence of the judiciary is at stake. That is what I said. If he is not taking decisions independently, then the perception is that somebody else is influencing him. Who that ‘somebody’ is, I am not in a position to say. The only thing I could perceive is that he was not taking decisions independently.
I am not quite sure because I didn’t have an occasion to discuss the matter with him. But I understand that he has taken some steps, there have been consultations… A better interactive process has been initiated. But whether a formal committee has been formed, I am not in a position to say.
Let’s not mix this with the press conference by the judges. Impeachment motion required a different approach altogether. They (Opposition parties) needed to have material on the basis of which they should have taken the decision (to move motion of impeachment). The press conference by the judges cannot be material (for motion of impeachment). Impeachment motion should have different material and is an independent process altogether.
I don’t want to comment on that. It had nothing to do with us.
There was a lot of communication gap between the two heads — the Prime Minister of India, who has to take an ultimate call on clearing the files, and the (then) CJI. As far as the collegium is concerned, on the basis of the inputs given by the government, we take a call. Earlier, they would just sit on the files. That amounted to interference in the independence of the judiciary. I brought it to the notice of the CJI and asked him to do something.
Now, from what I understand, CJI Ranjan Gogoi has taken up the process of dialogue and that is what has facilitated the process of appointments.
It wasn’t a private visit where only the CJI and the PM were present. I was there, all the senior judges were there. (At the dinner), there were also judges from the neighboring countries. It was part of the Constitution Day celebrations. Initially, it was being celebrated by the government on one side and the Supreme Court on another side. We said let’s have a common celebration. That was CJI Gogoi’s initiative. There was a formal dinner in the evening and a function at Vigyan Bhawan the next morning. Since the PM could not attend the event the next day, so the understanding was that he will attend the formal dinner with the invited delegates.
After dinner, the PM and the other delegates were taken to the court of the CJI, and thereafter to the CJI’s lounge… That was it. It was a routine, courtesy visit. Also, one is the PM, the other the CJI. Are they not mature enough to understand the limits they can go to? The present CJI has told us that he is going to have regular dialogue with the head of the nation. Crossing the line is when you meet people privately and discuss pending issues.
"If the CJI does not take independent decisions, then the independence of the judiciary is at stake. That is what I said. If he is not taking decisions independently, then the perception is that somebody else is influencing him"
We have started addressing these issues but not to the full extent. In the judgment I said I am not happy and I also said why I am not happy. I said we need glasnost and perestroika. We need transparency and we need to take corrective steps also.
What is lacking is a secretariat, both in the Supreme Court and the high courts. If there is a secretariat, you will have the opportunity to better verify the credentials of the candidates.
India is a secular country. Indian secularism is unique in its concept and implementation. It gives freedom to all citizens of the country to believe or not to believe. If they believe, there is freedom to profess what you believe, to proclaim it and to propagate it as well.
So, what are the restrictions on this? Under Article 25, four types of restrictions are given — this profession, practice and propagation shall not be in violation of public order, health, morality and fundamental rights. These are the four aspects. So, secularism has to be understood. It is not against any religion, it is not indifferent to religion; it has a welcoming stand. If the profession, practice and propagation of any religion crosses the lakshman rekha, the State can interfere by legislation or the court can interfere if it is brought to its notice.
Constitutional morality is an abstract term. The best moral principles of all religions have been incorporated in our Constitution. Constitutional morality comes under three aspects — equality, liberty and the dignity of the citizen. If this Constitutional morality is in any way violated, then there are two processes for it — the legislative process and the process where the constitutionality will be looked into.
I can’t comment on Sabarimala since the case is in the courts.
Let’s dissociate ourselves from the Sabarimala issue. Articles 14, 25 and 26 are not watertight compartments. It should be taken together and deliberated.
Death penalty was challenged before the Supreme Court, as to whether it should be a punishment at all. A Constitutional Bench upheld it in 1980 in the Bachan Singh vs State of Punjab case. It was a unanimous decision of five judges. In the Bachan Singh case, even though the court upheld (death penalty), it said that it should be imposed in the rarest of rare cases. Lawyers do not give thrust on these aspects while arguing the cases. So a person can be awarded capital punishment only in the rarest of rare cases. The rarest of rare cases would apply both to the crime and the criminal.
In one judgment, the Supreme Court requested the Law Commission to revisit the whole thing. The Law Commission submitted a report in 2015 saying that it is high time that we removed death penalty altogether. They went to the extent of saying that even in the case of terrorism, it doesn’t find any meaning. But in the country’s context now they have said that except in the case of terrorism, it (death penalty) should be taken away… This is in their 2015 report. So it has nothing to do with my personal beliefs. Going by the report of the Law Commission of India, I said we should revisit whether we should retain it at all.
I have never experienced any pressure. I have been absolutely independent. I had absolute freedom while discharging my duties as a judge. I believe that is the case with the other judges as well. But in the matter of administration of justice, which is left with the CJI, in that there was a perception that he was not taking decisions independently.
"Issues which are to be executed by the political executive and the legislature or Parliament, should be left to them. Public interest is the only area where the SC and HC should be concerned. The other concerns, that interests the public, are the concern of the government"
Firstly, I am of the firm view that the retirement age of judges, from the junior division to the Supreme Court, should at least be 70 years. It can go higher as well. Look at the experience a judge gains at the age of 62-65… At that age, a judge is in a better position to handle a case.
Secondly, despite introducing systems such as arbitration, mediation, conciliation, we have not been able to arrest the inflow of the cases. Unless we arrest the inflow, we cannot handle the pending cases. Of course, new cases coming in shows a faith in the system. Now it is up to the courts to find a better method. One is, of course, the number of judges — it’s inadequate. Look at the population of the country… the judge strength has to be doubled if you seriously want to address the issue of pendency of cases. Now, if the judge strength is to be doubled, the infrastructure has to be improved — a judge cannot function in vacuum.
Also, we need to look at alternative methods to litigation, as happens in many countries — like the jury, which is another kind of mediation or lok adalat. It’s a participative process. I think it is high time the country lays down a procedure prior to the institution of a proper litigation, be it on the civil side or the quasi-criminal side… Should there not be a filter mechanism? Unfortunately, a lawyer is paid only for arguing a case and not settling a case. This perception should also change. According to me, a lawyer who settles a case should be paid more.
Issues which are to be executed by the political executive and the legislature or Parliament, maybe, should be left to them. The Supreme Court or the High Court should not be spending time on those issues. I’m very clear about that. Public interest in terms of the Constitution is the only area where the court should be concerned. The other concerns, what the public is interested in, are the concern of the government.
I’m a very poor viewer of films. But I can give you a general answer. What we see in films is not actually what is happening in court. There’s a particular show Judge & Jury in America. It broadcasts what is actually happening in court. I will be happy if people see the actual functioning of the court. It will give them an idea. They might take a decision that it’s better not to go to the court.
In an unprecedented move in January this year, Justice (retd) Kurian Joseph, along with three other senior Supreme Court judges, held a press conference against former CJI Dipak Misra. Since then, Joseph, who retired last week, says things have improved at the apex court. In his tenure of over five years at the Supreme Court, Joseph who has previously served as a judge of the Kerala High Court and chief justice of the Himachal Pradesh High Court has been part of benches that have delivered landmark verdicts such as those on triple talaq and the National Judicial Appointments Commission.
(https://indianexpress.com/article/india/cji-has-toldus- that-he-is-going-to-have-regular-dialogue-withhead- of-nation-justice-kurian-joseph-5484800/ )
Dr (Col.) A. Balasubramanian
