Legislature and Judiciary: The balance

http://www.indiatogether.org/2003/may/opi-legisjud.htm
(This article was carried in India Together in May 2003)
Legislature and Judiciary: The balance
Pradeep K Baisakh traces the changes in the balance of power between our courts and lawmakers.
May 2003 - In the history of independent India there have been instances where two principal organs of the state, namely the Judiciary and the Legislature have been at loggerheads with each other. In 1967, on one such occasion the Supreme Court (SC) in the Golaknath vs. State of Punjab took away the amending power of Parliament by giving the ‘fundamental rights’ a transcendental position, making them immune from amendment. Subsequently, the Parliament asserted its authority by suitably amending Article 13 & Article 368 of the constitution in 1971 to empower itself to amend the fundamental rights. (Article 368 deals with the amendment of the constitution). This was upheld by the SC in the famous Keshabananda Bharti vs. State of Kerla case (1973). But in this case the judiciary ruled that the amending power of the Parliament is not absolute, and such amendments cannot destroy the basic feature of the Constitution. As a result of this judgment, the balance of power that was visibly tilted towards the judiciary in the Golaknath case came to a semblance of order.
During Indira Gandhi’s regime the 42nd amendment act of the Parliament brought about a sweeping change in the provisions of the constitution. Under this amendment Article 368, which gives amending power to the Parliament, was so modified that any further amendment of the constitution would be immune from being questioned in a court of law. This period witnessed a tilt of power in favour of the Parliament. However the balance between the two organs was again restored by the Minerva Mills case in 1980, where the SC ruled that the ‘judicial review’, being a basic feature of constitution, couldn’t be taken away by the Parliament by amendment of constitution. A key implication of this judgment is that the SC had empowered itself to sit on the judgment over any law passed by Parliament or any amendment done, to see their constitutionality.
Very recently, the SC’s verdict on the amendment of the Representation of People’s Act (RPA) has wrong-footed the nation’s lawmakers. The issue is that of the right to information of voters about candidates’ credentials. The Supreme Court has all along been maintaining that the ‘Right to know ’is a fundamental right flowing from the ‘Freedom of Expression’ guaranteed under Article 19(1)(a) of the Constitution. To this effect, in May 2002, in a landmark judgment the SC made it mandatory for the candidates contesting elections to furnish information regarding their criminal antecedents, assets and liabilities and their educational qualification. Following the ruling the Election Commission directed the Returning Officers to ensure such disclosure from the candidates during the filing of their nomination papers.
In response however, the political parties, in a rare unanimity, suggested that the ruling government bring about an alternate proposal for electoral reforms. The Government brought the Representation of Peoples (Amendment) ordinance, which was also eventually passed by the parliament as an Act. The amendment mandated giving details of only such criminal cases in which cognizance has been taken; it provided for disclosing the assets & liabilities of only the elected candidates, that too only to the Presiding Officer of the house. The government’s bill also dispensed the need for disclosing the educational qualification altogether. Clearly the intent was to dilute the SC’s ruling.
Several petitioners challenged the amendment to RPA Act. (look here for a information about the poll reforms campaign). In its ruling on March 13,2003, the Supreme Court declared the government’s amended electoral reform law unconstitutional, thereby restoring its earlier verdict.
Therefore, now the candidates have to declare
*Whether he/she had been convicted, acquitted, discharged in any criminal case.
*Prior to six months of filing nomination, whether he/she had been accused of an offence punishable with two years in jail.
*Combined assets.
*Liabilities, if any.
*Educational qualifications.
It is not that the State cannot impose restrictions on fundamental rights in the public interest. The right to freedom of speech and expression under Article 19(1)(a) is not absolute. The grounds for reasonable restrictions have been clearly specified under article-19(2). They include security of state, friendly relations with foreign nations, decency and morality etc. Whenever any restriction is imposed by Parliament or the state legislatures on the freedoms of individuals, the courts can verify the reasonableness of such restrictions with an aim to ensure a balance between individual liberty and social order.
In this case, the government’s amendment to the RPA did not in anyway seem to protect the public interest. Nowhere in its text does Article-19(2) even hint that protection of criminals’ interest or maintaining secrecy of any candidate’s unlawfully amassed wealth are grounds for reasonable restrictions on the fundamental right to information. Therefore the restrictions placed by government in its amendment to the RPA were unreasonable. Moreover, free and fair elections are a basic feature of constitution and this cannot be taken away by the legislature by amendments. All possible steps need to be taken to reduce the criminalisation of our politics. Lawbreakers cannot become lawmakers. The SC’s ruling for disclosure of information by election candidates will help the public in assessing their suitability. It puts our civil society on the path towards enhancing the competence of our elected bodies