NEW DELHI: Most analysts of the Supreme Court of India recognize the decision in ADM Jabalpur during the national emergency of 1975 to be a watershed decision. In this case the Apex Court failed to exercise judicial review and protect personal liberty. Some commentators argue that following this decision the collective guilt of the judiciary led to radical change in its approach. The birth of Public Interest Litigation (PIL) in the 1980s, where the court actively exercised its writ jurisdiction to promote socio-economic rights is seen as a consequence of the ADM Jabalpur decision. However a scrutiny of our judicial history will bring to light the fact that it was the pre emergency court which was responsible for broadening the nature of judicial review to promote fundamental rights. During this time the Court while protecting these rights had often differed from the Parliament and Executive on the interpretation of the Constitution.
Pre 1975- Supremacy of fundamental rights and an anti-majoritarian Court
Barry Friedman A Professor of Law and Politics in New York University in his 1998 paper published in the New York Law Review titled “The history of counter majoritarianism and judicial supremacy”, argued that criticism of the courts anti-majoritarian decisions are likely to emerge when: (a) judicial decisions are unpopular with a group influential enough to be able to claim to speak for the people and (b) rendered at a time when public sentiment favours a relatively popular or direct form of democracy.(c) whether at the time such decisions are rendered there is relative faith in the determinacy of judicial interpretations of the Constitution.
This kind of disapproval of judicial decisions was first seen in the years preceding the emergency. Judgments of Golak Nath (1968) and Kesavananda Bharati (1973) formulated the “basic structure doctrine” which guaranteed the supremacy of fundamental rights. The Privy Purses (1970) and the Bank Nationalization (1970) cases further expanded the scope of the fundamental rights and reiterated the separation of powers as subscribed in the Constitution. The judicial courage shown in these decisions became contentious, as there was no clear agreement between the Executive and the Judiciary on the interpretation of the Constitution.
In the Bank Nationalization case fundamental rights were strengthened firstly by overruling the assumption in A.K. Gopalans case, that in determining whether there is violation of individual’s fundamental rights, the object and form of state action alone needed to be considered and effect of the laws on fundamental rights could be ignored. Secondly, while the constitution recognized the parliament’s legislative competence to take over banks, it also underlined the fact that the right to compensation when attaining assets could not be illusory. Thirdly, while holding the legislative competence of the Parliament to nationalize banks, the Bench found the legislative prohibition restricting 14 banks to continue business of banking as hostile discrimination and invalid under Article 14 of the constitution, Fourthly, restrictions imposed against banks for conducting non-banking business went against the very grain of Article 19 (1) (g) which guarantees freedom to carry on trade and was hence struck down.
Interestingly the question whether judicial review of government policy could be undertaken by the Court was an important argument put forward by the Union of India with Attorney General Niren De bluntly telling the Judges that nationalization was a policy decision and therefore not subject to judicial scrutiny. The Court made it clear that while it cannot sit on appeal over the merits of policy it could test its constitutionality.
In the Prince’s Privy case the Government sought to withdraw the constitutional guarantee of Privy Purse through a presidential order. The Supreme Court made it clear that firstly a presidential order in the teeth of Constitutional guarantees provided under Article 291, 362 and 366 (22) (provisions of the constitution protecting rights of rulers including privy purse sums) is not lawful. Secondly the court held that while a constitutional amendment could bring about such a change in the constitution a modification through a presidential order was not in accord with the provisions of the constitution. Thirdly, the Court observed that the legislature could not defy the constitutional mandate and declare enactments null as a matter of preference. The constitutions inherent balance of powers between the legislature, executive and judiciary considered in the Constitution could not have been better explicated than through this judgment.
Significantly, these clashes between the Parliament and the Judiciary all occurred in the decade preceding the emergency in 1975.
Human Rights and Public Interest Litigation
In the 1980s the Supreme Court was greatly disturbed by the socio-economic injustice in the Country. The Court led by Justice Krishna Iyer and Justice Bhagwati formulated jurisprudential principles to make justice accessible to the economically and socially backward sections. The Judiciary increasingly began exercising public interest jurisdiction where the State had failed the poor and oppressed sections of the country.
In this phase the Supreme Court reached out to the common person to try and insure that an individual was not made to suffer injustice as a result of his or her lack of access. It dealt with issues ranging from prisoner to labour rights. However this phase cannot be seen as a reaction to ADM Jabalpur, where the Court had failed to maintain a check on the autocratic power of the executive. Instead, it should be seen as a continuation of the efforts of the Court in the Golaknath and Kesavananda Bharati cases to guarantee and further evolve fundamental rights.
The judgments of Sunil Batra, Hussainara Khaitoon, Municipal Council Ratam and Fertilizer Kamgar Union saw the Supreme Court used writ jurisdiction to promote and protect human rights. In order to provide justice the Judiciary moved from the traditional individualism of locus standi to a collective orientation of public interest litigation.
Supreme Court, corruption and the independence of institutions
The last decade has witnessed the Court decide on the issue of coal allocation (coal gate) and also the allocation of spectrum (2G). These cases involved corrupt practices at the highest levels and raised questions of what constitutes a corrupt act when it entails complex policy decisions by the executive.
It was also argued that the Judiciary is increasingly interfering in Government policy where it does not have jurisdiction or domain knowledge. In a constitutional democracy resting on the principle of separation of powers, debate on the constitutional role and limitations of each institution will arise.
These questions of law led the Supreme Court to uphold the autonomy and responsibility of public institutions such as the CBI, CVC, CAG and Lokayukta. The Court allowed independent institutions to offer expert opinion based on domain knowledge in a just manner by insulating them from the influence of the political class.
Finally, let us also not forget that whether it is the introduction of CNG, the restriction on unlawful mining to safeguard the environment, abolition of manual scavenging or the laws regarding acquisition of land by the State the Courts have consistently helped in the enactment of progressive legislation. There is no doubt that the Courts must tread carefully in the policy arena but a close look at the history of the Supreme Court will remind us that without an alert Judiciary our democracy will stand diminished.