By D.S. Gill, General

Secretary, PHRO Ludhiana

An independent and impartial Judiciary is said to be the first condition of Liberty. It is the custodian of the rights of the citizens. But the most beautiful description of these rights is that made by Hamilton:

“They are rights sacred to mankind written by a sunbeam through the book of Nature by the hand of Divinity itself, never to be erased by any human agency.”

Starting from the Declaration of Rights of Man (1759) to the Charter of the United Nations signed on 24,6.1945, the Universal Declaration of Human Rights adopted on 10.12.1948 and the European Convention for the Protection of Human Rights and Fundamental Freedoms signed on 14.11.1950, these rights gained international recognition.

‘Therefore, for the fear that majority may tyrannize over the minority, for the fear that majority may start molesting Fundamental Rights for the fear that bureaucracy may abuse its powers; democracies all the world over felt that a strong Judiciary was necessary to check the depredations of the Executive and to safeguard their rights.

The founding fathers of the Indian constitution were no less conscious of the need to have a strong and independent Judiciary. Speeches after speeches were made in the constituent assembly emphasizing that need.

Pandit Jawahar Lal Nehru was equally emphatic on the need of the Judiciary being independent. He said:

It is important that these judges should be not only first rate but should be acknowledged as first rate in the country and of highest integrity, if necessary, people who can stand up against the Executive, government and whoever come in their way. *

All the enthusiasm, however, did not last long. To what extent, the Indian Judiciary is independent, is evident from a survey conducted by the Operation Research Group, a survey organization, According to the Survey Report, the Judiciary is no longer independent. It is not attracting the best talent from the Bar. Judgments are sharped more often by political beliefs and the class back ground of the Judges. The Legislature and Bureaucracy are a great threat to the judicial system. This report was prepared after interviewing more than three hundred lawyers from the Supreme Court and the High Court of Delhi.

In 1964 warrants were issued against two High Court Judges because they had entertained a Habeas Corpus Petition of a person sentenced by the Legislature, and granted him bail.

In 1973, when a full bench of the Supreme Court consisting of all the thirteen judges was hearing arguments in Keshawanand’s case on the question of parliament’s power to amend the Chapter of Fundamental Rights in the Constitution the Attorney General appearing for the Union of India, conveyed to the Judges the threat of “alternative political action if the decision of the court did not find favor with the government.”

The Supreme Court delivered its judgment on April 20, 1973 preserving parliament’s power to amend the constitution but added that it could not to do in a manner as to alter or destroy its basic features. Even this limit on its power was not to the liking of the government. And, the very next day after the judgment was delivered the government passed an order, which had the effect of superseding three senior most judges in the matter of appointment of the Chief Justice of India. It was not a mere coincidence that Il the three judges were party to the majority decision. What could be a more effective way than this for the Executive to tell the judges, “Either fall in line with us or this will be your fate?” ‘

Not only this, the ruling party (Congress 1) at its annual secession on January 1, 1976 passed a resolution calling for a complete review of the Constitution. In the same year the constitution 42nd Amendment Act with a view to clip the powers of the Supreme Court was passed, which provided that no amendment of the constitution by the parliament shall be called in question in any court and there shall be no limitation whatsoever on the parliament to amend by way of addition, variation or repeal any provision of the constitution.

Thus by one stroke of pen, parliament sought to scrap the decision in Kashavanand case and assumed an all-embracing power totally excluding the power of judicial review.

The law minister, when he was piloting the amendment bill in the parliament ridiculed the judges saying that they were several generations behind time and actually extended threat when he said, he hoped that “the Supreme Court would do a bit of introspection, realize that the Supreme Court is not after all that Supreme and resist temptation to intrude into field’s which do not legitimately belong to them.”

He further went on to observe, without mincing words, that if a confrontation occurred, it would be a sad day for the judiciary.

In 1976 another occasion arose when the Executive showed its unmingled displeasure and demonstrated how costly it can be for Judge to voice any opinion against it. In the case of ADM Jabalpur versus S.N. Shukla, popularly known as Habeus Corpus case, the question before the Supreme Court was whether during the subsistence of a proclamation of emergency, a detune can challenge his detention in a court of law on any ground whatsoever. Four Honorable Judges decided the question in favor of the government while one expressed a dissenting opinion. This prompted the government to repeat its 1973 strategy. Justice H.R. Khanna (who had Biven the dissenting opinion) was Passed Over in the matter of appointment of Chief Justice of India and he had to resign in vindication of his self-respect.

While on the other hand, Judges who act accordingly to the wishes of the government are buckedup.

Article extracted from this publication >> March 16, 1990