Author Name:   shikhar.sinha

Our constitution is a document which demarcates limits of various wings of state is the source of power of these arms. It not only provides for separation of power but also keeps a check on such power through various measures embedded in it...

“Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by example. If the government becomes a lawbreaker, it breeds contempt for law, it invites every man to become a law unto him, and it invites anarchy.” - Louis D. Brandeis, U.S. Supreme Court Justice in Olmstead v. U.S.[1]

In 1927 seems to be true as Chief justice of one country is forcibly removed from chair and apex Court of another has duly exercised its power on several occasions to declare the decisions of other two pillars of government as ultra vires, dictator of previous roared “Constitution is a 12 page book which can be torn anytime” whereas Supreme Court of latter sent a former dictator to imprisonment for suspending the constitution that is why the former is on 12th position in the “Failed States Index” of Foreign Policy Magazine whereas the latter is Emerging Superpower.[1]

This is the tale of two countries namely India and Pakistan, both of them gained independence from slavery of centuries and with wounds of partition, communal hatred, riots and poverty but judiciary of latter thereby upholding the faith of people in the values of democracy declared the dissolution of even a provincial assembly as unconstitutional on the other hand the former had a history of every elected government being toppled by the dictators before completing its term.

The reason for all this is that one has the longest constitution of the world and the constitution of the other has been changed entirely twice since independence which is the reason that the latter is the largest democracy of world and the former had seen Marshal Law in 35 out of 60 years of independence i.e. majority of time as a nation it has been ruled by dictators.

Our constitution provides clear separation of powers of all the three wings of government namely legislature, executive and judiciary with all having separate domains and measures of checks and counterchecks on each other. Our national leaders of freedom struggle realized that “No free government can survive that is not based on the supremacy of law” as in scripted on the Justice department building in Washington states so they felt the need of an impartial, sovereign and responsible institution to which the powers to administer justice and the function to uphold the supremacy of law could be delegated and which would be vigilant to other organs encroaching on citizens’ rights and subverting the Constitution.

This resulted in founding of The Supreme Court and a judiciary which is completely separated from legislature and executive in exercising its judicial functions and thereby deviating from the tradition of U.K. as our entire parliamentary system is taken from U.K. where the Supreme Court is the House Of Lords and is a part of legislature.

Comparing this setup with our setup, our Supreme Court is not a part of legislature so it can not only preside over dispute between the Union and State but can also review the executive as well as legislative action of arbitrariness and thereby can protect the voice of minority section of society rising against the atrocities committed on them by the government and thereby uphold the principles of natural justice that one can’t be a judge in its own cause.

To realize this goal of theirs the framers of the Constitution took infinite care to provide for an independent and impartial judiciary as the interpreter of the Constitution and the custodian of the rights of the citizens and Indian Constitution, which executes the said function through the process of judicial review over the acts of the legislature and the executive, which gives the mandate to the judiciary to interpret the laws but it should not be misunderstood as the Constitution does not contemplate a Super-organ nor confers an over-riding authority on any one organ.

No organ has any power to superintend over the exercise of powers and functions of another, unless the Constitution strictly so mandates. It is obvious that all organs of the State should act only according to the constitutional mandate and should not be astute to find any undisclosed source of power or authority to expand its own jurisdiction, which will give rise to avoidable conflicts and affect the harmonious functioning of the different organs of the State.

Judiciary: Savior of The Rights of Destitute and Commoner Supreme Above All
“The supreme court is the living voice of the constitution – that is of the will of people expressed in the fundamental laws they have enacted. It is the conscience of the people. it is guarantee of the minority who when threatened by the impatient vehemence of the majority, can appeal to this permanent law finding the interpreter and enforcer there of in a court set high above the assault of the factions.”

- As quoted by James Bryce, the then British ambassador to US in the American commonwealth in 1888 was understood to the deepest of its meaning by the framers of our Constitution as they assigned the judiciary in India to play a significant role of safeguarding the supremacy of the Constitution by interpreting and applying the provisions of the Constitution and acts as its guardian by keeping all authorities i.e. legislature, executive, administration, judicial and quasi judicial authorities within bounds of Constitutional framework and thereby maintaining the rule of law in the country and assures that the government runs according to law.

“Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty or property of particular named person because the legislature thinks them guilty of conduct which deserves punishment. The authors of the Constitution intended to safeguard the people of this country from punishment without trial by duly constituted courts.”

- This was quoted by Felix Frankfurter, US Supreme Court Justice in US v. Lovett[2] in 1945 and to bring this reality they entitled the judiciary to scrutinize under Article 13 of the Constitution any governmental action in order to assess whether or not it conforms to the Constitution and the valid laws made there under. [2]

It has power to protect people’s fundamental rights from any undue encroachment by any organ of the government. The Supreme Court acts as the guardian and protector of the fundamental rights of the people by invoking its power of writ jurisdiction conferred on it under Article 32 of the Constitution and thereby acts as sentinel on qui vive to protect the fundamental rights as was held by the Supreme Court in Pathumma v. State Of Kerla.[3][3]

As in the words of Justice Untwalia in Union Of India v. Sankalchand Himatlal Sheth[4]: “Judiciary is a watching tower above all the big structure of the other limbs of the state from which it keeps a watch like a sentinel on the functions of the other limbs of the state as to whether they are working in accordance with the law and the Constitution where the Constitution being supreme.” [4]

It has also to dispense justice between the state and the citizens i.e. between seat of power and the commoner where the former is armed with all the privileges and power and support of majority of countrymen and the latter is bare hands belonging to the handful of people whose rights are infringed by the governmental action but with firm belief and faith in the principles of democracy in their heart and mind.

As it was quoted by Felix Frankfurter, US Supreme Court Justice in Earl Katcher & Warren: A Political Biography, 1967:

“The Supreme Court authority possessed neither of the purse nor the sword but ultimately rest on sustained public confidence in its moral sanctions. Such a feeling must be nourished by the court’s complete detachment, infact and appearance, from political entanglements and by abstention from injecting itself into the clash of political forces and political settlements.”

So in order to realize this and to enable judiciary to discharge their functions impartially without fear or favor, our forefathers armed the constitution with certain provisions not only to safeguard judicial independence but also to ensure the judicial accountability from lower to topmost tier. The judges of these courts are appointed by the central executive in accordance with the advice of chief justice himself and this mechanism for maintaining this independence was ensured after the landmark judgment in Supreme Court Advocate’s On Record v. Union Of India[5] case. Once appointed, the judges hold office till they reach the age of superannuation as fixed by the Constitution under Article 124(2) because of which their tenure is independent of the will of the executive and further there is a special and complex procedure that has been laid down in Article 124(4) of the Constitution for removing the judges on the grounds of incapacity or misbehavior which ensures that their power is checked and they do not function in an arbitrary manner.[5]

There is one more significant role that the judiciary has to play in a federation i.e. to act as the balance wheel of federalism by deciding the controversies between the constituent states inter se, as well as between the centre and state as this power is conferred to judiciary under Article 131 of the Constitution under the heading of original jurisdiction of the Supreme Court.

Further adding weapons to its armoury the framers of our Constitution has provided the Supreme Court with jurisdiction to punish contempt of its authority under Article 129 of the Constitution. Such a power is very necessary to prevent interference with the course of justice and in maintaining the authority of law as administered in the court and to ensure the confidence of people in the integrity of the judges as the same was observed by the court in Om Prakash Jaiswal v. D.K. Mittal[6] that: “Any act or omission which undermines the dignity of the court is therefore viewed with concern by the society and the court treats it as an obligation to zealously guard against any onslaught on its dignity.”[6]

It is not so that only an individual can be held liable for contempt of court but executive branch of government also bears a grave responsibility for upholding and obeying judicial orders as the same was ruled by the apex court in Md. Aslam v. Union Of India[7] and Vineet Kumar Mathur v. Union Of India[8] to name few but this responsibility is many times is not fulfilled in many cases and in many cases government officials are found guilty by the Supreme Court of contempt the most famous of which is Indira Sawhney v. Union Of India[9] where the Chief Secretary of Kerela was guilty of contempt of court. [9][8][7]

In this regard parliament has the power to enact laws but such laws are limited only to prescribe the procedure to be followed and the maximum duration of the punishment and can make provisions for appeal but parliament has no legislative competence to abridge or extinguish the jurisdiction or power conferred on this court by the Constitution. The two rulings namely Delhi Judicial Services Association, Tis Hazari Court v. State of Gujrat[10] and Supreme Court Bar Association v. Union Of India[11] in this respect are significant where in the former the Supreme Court held that parliament’s power to legislate in relation to law of contempt is limited and in the latter Supreme Court ruled that the Constitutional vested right under Article 129 can’t be either abrogated, abridged or cut down by any legislation such as Contempt of Court Act or C.P.C. [11][10]

The above mentioned provisions of the Constitution is the place from where judiciary attributes its supremacy over the other 2 pillars of Indian democracy namely the legislature and executive and any act done by judiciary for upholding the principles of democracy can’t be labeled as encroachment of judiciary over the domain of legislature and executive as many times in recent past top notch of legislature and executive had given statement in open against judiciary of not to cross its limits which clearly attracts contempt of court proceeding against themselves.

Talking about the recent major face off between the judiciary on one side and legislature and executive on the other side are on the issues of directions of Supreme Court to conduct floor test in Jharkhand Assembly, summons to Lok Sabha Speaker in expulsions of M.P.’s case and considering the constitutionality of dissolution of Bihar Assembly.

Regarding the direction of Supreme Court to conduct floor test in Jharkhand Assembly, it is no where in violation of Article 212 of Constitution because although the courts can’t interfere with the working of a house on grounds of irregularity of procedure but they may scrutinize the proceeding of house on grounds of illegality or unconstitutionality. The same was the case here as the courts didn’t interfered in the procedure of floor test but it only directed to conduct a floor test because formation of JMM government was unconstitutional as it was in minority and was formed without the floor test. Similar verdict of Supreme Court was there to conduct floor test in case of Jagdambika Pal v. State of U.P.[12]. It is all wrong to say that Constitution prohibits judiciary to look into matters of violation of Constitution when it is concerned with legislative act instead it is vice versa as in Keshav Singh v. Speaker, Legislative Assembly[13] the court had interpreted the Constitution as: “Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law, the validity of any proceeding inside the legislative chamber, if his case is that the said proceeding suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law.” [13][12]

Coming to the topic of summon to Speaker of Lok Sabha and his subsequent remarks on that clearly invites contempt of court proceedings against him as he had laminated the Supreme Court to be overstepping its limits which was not the case of overstepping of limits, but is a jurisdiction conferred to it by Constitution as laid down in: Delhi Electric Supply Undertaking v. Basanti Devi[14] where it was ruled that under Article 142(1) that Supreme Court in exercise of its jurisdiction is entitled to pass any decree, or make any order, as is necessary for doing complete justice in any cause of matter pending before it and it was under same provision it was deemed fit by Supreme Court to summon the Speaker and ask him that under which provision of law the legislature has power to expel its members elected by people when it doesn’t have power to appoint them as representative of people. [14]

It must also be brought in light that it was not only under Article 142(1) but it was also under an express provision of Constitution for this purpose i.e. under Article 142(2) of Constitution Supreme Court have all and every power to make any order for securing attendance of any person and Speaker should be reminded of Article 361 of Constitution which protect only President and Governor from being answerable to any court in course of exercise and performance of powers and duties of his office or for any act done and the post of Speaker Of Lok Sabha is not in the ambit of this provision of not being answerable to any court of law and it should also be reminded to him that his denial to summons of court is in ambit of guidelines laid down by apex court in Hira Lal Dixit v. State of U.P.[15] in which it was held that any willful disobedience or non compliance of court order is considered as contempt of court as his act hampers administration of justice and erodes faith of people from the temple of justice and brings administration of justice into deep disrespect.[15]

Lastly dissolution of Bihar Assembly which was dissolved on the recommendation of Governor of Bihar and on advice of Union cabinet of ministers by The President was held unconstitutional is also not violation of Article 361 of Constitution as the court hadn’t seek any answer either from The President and The Governor of Bihar but from this it shouldn’t be construed from this provision that this prohibits the court to initiate any proceedings against the Government Of India as the same Article 361 further states that nothing in this clause shall be implied as restricting right of any person to bring appropriate proceeding against Government Of India. Further in this matter it should be taken that in the cases of Rao Birinder Singh v. Union Of India[16] and Madhav Rao Scindia v. Union Of India[17] and other such cases court held that appropriate proceeding can be brought against Government Of India and only President personally is not amenable to a court process with reference to act in question yet when question arises that whether in a given situation the President has acted rightly or wrongly it may be decided only against Government Of India without questioning president’s conduct.[17][16]

Conclusion
Finally it should be kept in mind that such Constitutional blunder as that of dissolution of Bihar Assembly case should be avoided in which the President’s office was indirectly brought under criticism by bringing an amendment in Article 74(1) of Constitution and thereby amending it as there shall be Supreme Court with Chief Justice at its head to aid and advice President who shall, in exercise of his functions, act in accordance with such advice so by this all his acts will be in ambit and accordance with laws of country where Constitution being supreme and there will be no any such Constitutional blunder as that of indirect criticism of President’s office.

Further the cases like that of P.N. Duda v. P. Shivshanknkear[18] should be dealt with an iron hand and no one should be allowed to walk away freely in any way or other despite criticism of courts only on the grounds that he or she belongs to power corridors of country as we don’t further want constitutional blunder as that of Justice Beg and Justice A.N. Ray nor brain drain from judiciary as that of protest resignation in the form of Justice Khanna.[18]
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[1][1] 277 U.S. 438 (1928)
[2][2] 328 U.S. 303 (1946)
[3][3] AIR 1978 SC 771
[4][4] AIR 1977 SC 2328
[5][5] AIR 1994 SC 268
[6][6] AIR 2000 SC 1136
[7][7] (1994) 6 SCC 442
[8][8] (1996) 7 SCC 714
[9][9] AIR 1993 SC 477
[10][10] AIR 1991 SC 2716
[11][11] AIR 1998 SC 1895
[12][12] AIR 1998 SC 998
[13][13] AIR 1965 SC 745
[14][14] AIR 2000 SC 43
[15][15] AIR 1954 SC 743
[16][16] AIR 1968 Punj. 441
[17][17] AIR 1971 SC 530
[18][18] AIR 1988 SC 1208

The  author can be reached at: shikhar.sinha@legalservicesindia.com

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