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The Judiciary versus the Legislature - forever and ever

Before addressing the question, it is imperative to have a basic idea of our Constitution and the influence Parliamentary amendments have had on our Constitutional scheme.

The Indian Constitution as we all know is a perfect blend of the notions of British Parliamentary sovereignty, the Irish state policies authority and American judicial supremacy. In order to strike a balance between these notions incorporated in our Constitution, there are checks and balances, expressly and impliedly prescribed by it for maintaining Constitutional supremacy alone, for the welfare of the people.

Our Constitution under Article-50, expressly recognises the separation of the judiciary from the executive and also impliedly recognises the 'Doctrine of separation of powers', propounded by a French scholar � Montesquieu, as a part of the basic structure of the Constitution.

Montesquieu's theory of Separation of Powers, states that[1]

There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing laws, that of executing public resolutions, and of trying the causes of individuals.

Though Montesquieu's theory has been well perceived across the globe and impliedly accepted as a part of the basic structure of the Indian Constitution also, but yet, we see a constant threat to the same in the Indian parlance, thereby causing unrest amongst the three wings of our Constitution.

The Constitution of India, as on date, has undergone amendments 104 times over a period of 70 years from the date its commencement and now has 448 Articles, grouped into 25 parts with 12 schedules.

These amendments made to our Constitution by the legislature has brought about a plethora of changes in the way the Articles of the Constitution are to be interpreted and the way in which the nation at large is to be administered and benefited. No doubt our Constitution is a 'Living Constitution', as it is ever evolving, thereby capable of keeping pace with the changing needs of our society but one should not lose sight of the legislature's intent behind bringing about a change in the perception of the core values of our Constitution and the impact it would have on our society in the long run.

In order to emphasise the need for separation of powers and the independence of the Judiciary to be maintained in accordance with our Constitutional scheme, we would have to analyse Constitutional amendments brought about by the Parliament and the trend adopted by the legislature to mar the lines for a separate and an independent judiciary.

Constitutional Amendments[2] to bypass the Judiciary:

A keen look at our Constitutional amendments would reveal the trend adopted by the Parliament to abrogate the powers of the Judiciary, thereby defeating the very spirt and essence of our Constitution.

The 1st Amendment, 1951 � Provided for a Nineth Schedule in our Constitution to protect laws included under it from judicial review. Primarily it was incorporated in our Constitution to protect land reforms but is now being used to protect a variety of Acts.

The 4th Amendment, 1955 � made the scale of compensation given in lieu of compulsory acquisition of private property beyond the scrutiny of the courts.

The 20th Amendment, 1966 � Validated certain appointments of district judges in UP state which were declared void by the Supreme Court

The 24th Amendment, 1971 � Affirmed the power of the Parliament to amend any part of the Constitution including fundamental rights and also made it compulsory for the President to give his assent to a Constitutional Bill. This amendment was effected to abrogate the decision of the Supreme Court in I.C.Golak Nath and others vs State of Punjab[3].

The 25th Amendment, 1971 � Curtailed the Fundamental right to property and compensation to be given in case the state took over private property. The amendment also provided that any law made to give effect to the Directive Principles contained in Article 39 (b) or (c) cannot be challenged on the ground of violation of the rights guaranteed by Articles 14, 19 and 31.

The 30th Amendment, 1972 � Did away with the provision which allowed for an appeal to the Supreme Court in civil cases involving an amount of Rs.20,000/- and thereafter provided for filing of an appeal only if the case involved a substantial question of law. By this amendment right of an individual to approach the court of appeal, was taken away.

The 38th Amendment, 1975 � This amendment widened the powers of the President, empowering him to make proclamations or ordinances or laws during national emergency and also barring judicial review of such proclamations made during emergency.

The 39th Amendment, 1975 � Disputes relating to the election of the President, Vice-President, Prime Minister and Speaker were put beyond the scope of judicial review. This amendment was made to negate the judgment of the High Court of Allahabad, invalidating the then Prime Minister's election to the parliament. The amendment came into force on 10th August, 1975 just a day before the Supreme Court's hearing of the matter, which made the proceeding before the Apex Court infructuous.

The 42nd Amendment, 1976 � It is by far the most horrendous of amendments made to the Constitution. By this amendment the Directive Principles of the State Policy were to be given predominance over Fundamental Rights and the judiciaries powers were restricted by prohibiting judicial remedy under Article 32, available when Fundamental Rights were denied under Central Laws. Article 368 was also amended so as to exclude the questioning of any further Constitutional amendments to be made. In light of this amendment to the Constitution, the 13 bench judgement of the Supreme Court in Kesavanada Bharati and others vs. State of Kerala[4], had no relevance.

The 75th Amendment, 1994 � Provided for the establishment of Rent Tribunals by the states in order to exclude the jurisdiction of all courts except the Supreme Court under Article 136 of the Constitution.

The 75th Amendment, 1994 � This amendment was brought about by the Parliament to overrule the judgement of the Supreme Court in Indira Sawhney and others vs. UOI and others[5], which prescribed for protection of a class of individuals in the form of reservations to not exceed 50% of the total number of seats.

By this amendment the Parliament placed Tamil Nadu Reservation Act,1994 in the Ninth Schedule though it provided for 69% reservation of seats in educational institutions and state services, thereby protecting the Act from judicial review.

The 93rd Amendment, 2005 � Brought about to nullify the Supreme Court's judgement in P.A. Inamdar & Ors vs. State Of Maharashtra & Ors[6], where the Apex Court held the reservation in unaided private professional educational institutions to be unconstitutional and that the state cannot insist on such institutions to implement the state's policy as it would constitute a serious encroachment on the right and autonomy of such institutions.

The 99th Amendment, 2014 � This amendment provided for the establishment of the National Judicial Commission, for the appointment of judges to the higher judiciary. The new Act had a provision for two eminent members to be a part of the judges selection committee in addition to the Chief Justice of India, 2 senior most judges of the Apex Court and the Union Law Minister. The two eminent persons on the selection committee, who could be laymen as far as the judiciary was concerned, were to be nominated by the Chief Justice of India, Prime Minister and opposition leader of LoK Sabha.

In addition to the above, the Parliament has time and again used the Nineth Schedule of our Constitution to protect a number of Acts from judicial review, which now protects 284 Acts.

Rampant Tribunalization in India:
Tribunalization in India became rampant with the 42nd Constitutional Amendment, 1976, where Part XIV-A was added to the Constitution and this facilitated for the establishment of Tribunals for dealing with administrative matters and other matters as per Article 323-A and 323-B, respectively. With this inclusion came the derecognition or exclusion of the High Courts from looking into matters dealt with by the Tribunals.

The Parliaments main reasoning for setting up a Tribunal was to remove the burden of the courts in deciding multiple cases of diverse subjects, within a short period. For this goal to be achieved there was a requirement for setting up specialised Tribunals to deal with the developments in specific areas of law. The Parliament in my opinion took this opportunity to divest powers, vested solely with the judiciary and went ahead with setting up Tribunals instead of Special Courts.

The Tribunals could regulate their own procedure for speedy disposal of cases and they were to be equivalently recognised as that of a High Court but on the flip side the Tribunals were to have members from the executive wing, appointed by the legislature, for providing technical assistance in deciding matters.

We now have a number of Tribunals established as under the Constitution and also under statutes, which keep the High Court's away from looking into matters dealt by it. In the Supreme Court's judgement in Madras Bar Association vs. UOI and another[7], we see that the establishment of a second Appellate Tribunal abrogating the High Court's jurisdiction has not been appreciated by the judiciary and the Supreme Court reiterated that an appeal is a creature of the statute and it can be done away with by the statute but the jurisdiction to decide substantial question of law vests under our constitution, with the High Courts and the Supreme Court, and cannot be vested in any other body, as the core constitutional value would be impaired.

In the above decision the Supreme Court struck down the National Tax Tribunals Act as unconstitutional and has held that:

In view of the constitutional scheme and the jurisdiction conferred on this Court under Article-32 and on the High Courts under Article-226 of the Constitution, the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution.

Moreover, in a federal constitution, the distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between Parliament and the State Legislatures, it is also necessary to show any transgression by each entity.

The present scenario:
For over decades, we have had the Parliament amending the Constitution and constituting Tribunals abrogating the powers of the High Courts, under the pretext of speedy justice for its people. The Parliament by doing so, has taken conscious steps to keep the High Courts from reviewing the Tribunals decisions or invalidating its dictum at the grass root itself.

In the present scenario we see a slight change in the way the Parliament has opted to keep the Judiciary away from reviewing or invalidating its Rule. The Parliament has chosen to first shut out the active role played by the High Courts in adjudicating matters as provided for under Article 226 of the Constitution and secondly it has sought to give primacy to the contract between the litigants with certain twists and this can be evidenced from the different Acts and amendments to Acts, enacted by the Parliament since 2015.

One such major enactment is The Arbitration and Conciliation (Amended) Act, 2015, which is sought to be an alternative speedy dispute redressal mechanism that purports to be different from the conventional court system. It offers the litigants full autonomy to appoint any person/persons as arbitrators, as the Act does not specify qualifications for an arbitrator who is to adjudge the matter and pass an award. This Act spells out that the Courts are not to intervene even in domestic arbitrations, except in certain circumstances like granting interim measures and when the tribunal requires the assistance of the court in taking evidence.

The grounds for setting aside an arbitral award, provided for under Section-34 of the Act are noting but 'peep holes' narrowing down the scope of the Courts to set aside an arbitral award based on 8 grounds only. However, very specifically a look at Section-34 (2)(b)(ii), we see that, for the first time conflict with 'Public Policy' of India as a ground for setting aside an arbitral award is statutorily recognised, thereby giving greater emphasis and predominance to 'Public Policy of India' which is the mandate of the Parliament.

Section-37 of the Act, relates to appeals and prescribes for the Courts to take a rigid view while dealing with appeals. The Act nowhere provides for the power of the Court to interfere with an award.

Once again in the advent of setting up of a Tribunal under the Finance Act, 2017, we see the 2014 judgement of the Apex Court[8], being eclipsed by the Parliamentary enactment. Although the 2014 judgement of the Apex Court, prescribed for predominant number of members from the judiciary to sit on a bench and also for a judicial member with a certain qualification to be appointment as Chairpersons of the Tribunal, the Rules of the said Finance Act made it permissible for the Central Government to appoint an enquiry committee, trying to silently mar the lines drawn by the judiciary in its 2014 judgement.

The Rules of the Finance Act remained silent about the members to be appointed to the enquiry committee for removal of the presiding officers or members of the Tribunal. In addition to the above, the Act also prescribed for statutory appeal from the Tribunal directly to the Supreme Court. This Act brought out the legislature's intent to divest judicial power from the judiciary in addition to curtailing the powers vested with the High Courts, which has been very neatly dealt with by the Judiciary in Rojer Mathew vs. South Indian Bank Ltd. and Ors[9].

The Model Tenancy Act, 2019, released by the Ministry of Housing and Urban Affairs in furtherance of the Union budget-2019, has under clause-29 of the Model Act, prescribed for the Rent Authority to be an executive not below the rank of the Deputy Collector and vested the powers of the Court in dealing with certain issues between landlord and tenant.

From the above-mentioned clause, it can be inferred that the Parliament under the guise of speedy dispute redressal between landlord and tenant has brought in the executives to part take in the first round of adjudication of disputes, in a matter to be under the purview of a Tribunal. This by itself is violative of Article-50 of the Constitution and also the implied understanding of separation of powers between the three pillars of the Constitution.

To simply put it the Constitution does not allow for usurping or divesting of judicial functions by the legislature, even if it is under the pretext of a policy decision of the Government to provide for better regulation of renting premises, speedy disposal of cases and relieving the judiciary from piling up of cases, in public interest, the act of the Parliament to delegate judicial powers to the executive would amount to being in derogation of the constitutional scheme.

Public Policy versus the Constitutional scheme and ethos:

The term 'Public Policy, was explained for the first time in Renusagar Power Co.Ltd vs. General Electric Company and anr[10], as-
some matter which concerns the public good and the public interest. The term Public Policy of India has gone from mere conceptualisation in Renugasar's case, to the concept being fine-tuned in Oil and Natural Gas ltd., vs. Western GECO International Ltd.[11] and Associate Builders Case[12], thereafter being statutorily recognised as a ground in The Arbitration and Conciliation (Amended) Act, 2015, even for domestic arbitrations.

Public Policy as we all know is a 'Doctrine of Political question' and recognising it as a statutory ground would hamper the judiciary from delving into the issues involved. When the judiciary is precluded in such a way from dealing with an issue, this in turn would hinder a litigant from succeeding, thereby affecting his rights and also weakening the fundamentals of our Constitution.

What needs to be analysed here, is whether the statutory recognition of a Political doctrine in domestic cases also, is a means of curtailing the responsibilities of the judiciary by the legislature.
Would are Courts be prevented from enquiring into questions of Public Policy ? If answered in the affirmative, how then can the Courts fulfil the mandate of the Constitution?

Taking a look at Hirandra Kumar vs. High Court of Judicature at Allahabad and Others[13], the Apex Court has held that:
Essentially, the determination of cut-off dates lies in the realm of policy. A court in the exercise of the power of judicial review does not take over that function for itself. Plainly, it is for the rule making authority to discharge that function while framing the Rules.

We see that the Apex Court considering it 'not justiciable' to delve into a matter pertaining to a policy decision might be its way of respecting the scheme of the Constitution and the separation of powers presumed under our Constitution but in doing so it is recognising and giving legal sanctity to an irrational policy decision, not based on any scientific evidence or statistical data.

Can the abuse of public morality or the legislature clipping the powers of the judiciary to delve into matters concerning public morality over public security be questioned or would it be protected under the guise of a notion of Public Policy?

Thus 'In conflict with the Public Policy of India' as a statutory ground to deal with matters on a domestic front and an international front cannot be construed and applied in the same sense, as when applied in the domestic realm it would be averse to the stability of the society and would pave the way for legislature's dominion, which is contrary to the scheme and the very ethos of our Constitution.

Right from the inception of our Constitution, it has been the Parliament's endeavour to draw contours defining and re-defining the boundaries of the judiciary, which is ever shrinking but on the other hand the Parliament has sought to wield more power to itself.

The initial form of barricading the judiciary's expertise came with the inclusion of the Nineth Schedule to our Constitution and then on we have seen Constitutional amendments to nullify judicial decisions and abrogate the powers vested with the judiciary, thereby weakening the faith of the people in the judiciary.

In furtherance to this ideology came the rampant tribunalization, where the Parliament had started work on establishing non-conventional ways of dispensing with the powers of the judiciary. By this, the aura with which the multiple tires of the judiciary were looked at by the common man slowly began to disintegrate. By this experiment, the legislature was unable to disrupt the magnificent face of the Apex Court.

Then came the novel idea for party (litigant) autonomy, that is depicted as the central idea behind the present-day enactments. The legislature by doing so has on one breath given the litigants full autonomy under the enactments and on another breath the legislature has sought to protect its decisions alone under the guise of 'Public Policy', thereby ousting out the real role of the judiciary.

With the persistent inventions by the legislature in wielding excessive power to themselves, we see a pronounced degree of action taken by the legislature to make their decisions the absolute rule of the land.

Is it not time for judicial intervention to put an end to this long-drawn battle of being the guardians of our Constitution and having to very cautiously walk the ever blurring and narrowing lines set by the legislature for it?

  1. Charles Louis de Secondat, Baron de Montesquieu, Complete Works, vol. 1 (The Spirit of Laws) [1748]
  3. 1967 AIR(SC) 1643
  4. 1973 AIR(SC) 1461
  5. 1993 AIR(SC) 477
  6. 2005 AIR(SC) 3226
  7. 2014 (10) SCC 1
  8. Madras Bar Association vs. UOI and another, 2014 (10) SCC 1
  9. CDJ 2019 SC 1273
  10. 1994 AIR(SC) 860
  11. 2014 (9) SCC 263
  12. 2015 (3) SCC 49
  13. 2019(2) Allahabad Weekly Cases 1507 SC
Written By: Rukmani.R.Viswanathan

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